Reg v Meadway

[1992] HCATrans 184

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No Bl6 of 1992

B e t w e e n -

THE QUEEN

Applicant

and

JASON ALLAN CAMERON MEADWAY

Respondent

Application for special leave

to appeal

BRENNAN J
DEANE J

McHUGH J

Meadway 1 23/6/92

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 23 JUNE 1992, AT 4.20 PM

Copyright in the High Court of Australia

MR M.J. BYRNE:  If the Court please, I appear with my

learned friend, MR J.R. HUNTER, for the applicant.

(instructed by D. Field, Solicitor to the Director

of Public Prosecutions (Queensland))

MR J.F. CLAIRE:  I appear for the respondent, if it please

Your Honours. (instructed by J.A. Hodgins,

Director, Legal Aid Office (Queensland))

BRENNAN J: Yes, Mr Claire. Mr Byrne.

MR BYRNE:  If the Court please, I assume Your Honours have

the opportunity of reading the written submissions,

both by myself and by my learned friend.

BRENNAN J: No, I have not seen them, I am afraid, Mr Byrne.

MR BYRNE:  I apologize. They were supplied in accordance

with practice direction No 1. They do not seem to

have made it into the record book.

MR CLAIRE:  I might as well pass up mine at the same time.

BRENNAN J: Yes, thank you, Mr Claire.

MR CLAIRE: These were supplied about a month ago to the

registry, but anyway - - -

BRENNAN J:  It is a pity that they have not found their way

elsewhere. Yes, Mr Byrne.

MR BYRNE:  The application being one by the Crown for

special leave, the test indicated earlier this

afternoon in Benz, Glennon and by Your Honour

Justice Deane in Rogerson, is accepted. To examine

the background of this application, the trial was
conducted, a fully and appropriately instructed

jury, Domican v Reg, included in the directions.

That jury was satisfied beyond reasonable doubt of

the correctness of the identification of the

respondent. That is, they were satisfied to the

requisite standard that the quality of the

identification was sufficient to render a verdict

of guilty.

Your Honours, the identification was in three

stages. The day after the attack on the

complainant, she attended a police station where an

identikit photograph, or identikit composite, was

done of her attacker. That depicted the attacker

as having long straggly light or blondish hair.

She was then shown a number of photographs, which

included 709 photographs of male persons, at a

police station; from that she selected a photograph

of a male with short dark hair. She selected that

person as the person who attacked her, based on the

Meadway 2 23/6/92

facial characteristics, but said of course that his

hair, the hair of her attacker, was longer and

blonder than that shown in the photograph.

Police attended on the home of the respondent.

He, at the relevant time, did have shoulder length

blond hair. He was asked to participate in an

orthodox identification parade and he exercised his

right not to do so. After that exercise of his
right, the police attempted to obtain

identification evidence by alternate means. They

already had the photograph identification, which I

have alluded to. They then adopted what I called,

perhaps loosely, in my written submissions, as a

"stake out" method of identification. That is,

over a period of some 12 days they took the

complainant to various parts of the Redcliffe

Peninsula to see if she could see the person that

she said attacked her.

The last phase of that was three, or two and a

bit days, at the Redcliffe magistrates court. She

was taken there by police and sat there patiently

for two days. The respondent did not enter and she

made no identification. After some time on the

third day the respondent did enter. She walked up

to him, closely listened to him speak and then

positively identified him as her attacker to

police. It was on the basis of that

identification - and I should say at the outset

that the identification which I do not, for these

purposes, intend taking Your Honours to, could not
be said to be fleeting in that she was attacked

from behind, a cord placed around her neck and she

then from that time observed the face of her

attacker until she lost consciousness.	The times
vary in estimates.	She would not say it was

seconds, it was more minutes.

The point of special leave submitted on behalf of the Crown before Your Honours is that it is

implicit in the reasons for judgment of the Court

of Appeal of Queensland, that had an orthodox

identification parade been successfully - if I may

use that term - conducted, then the conviction

recorded by the jury would not have been quashed.

The submission follows that it is appropriate for

this honourable Court to determine the weight that

alternate methods of identification should be

given, particularly in the circumstances where an

accused person has exercised his right not to

participate in an orthodox identification parade.

BRENNAN J:  Mr Byrne, if you look at page 100 of the appeal

book, the task which the court set itself is there

set out, is it not, at line 21, to:

Meadway 3 23/6/92

decide whether a jury, acting reasonably, must

have entertained a reasonable doubt as to the

appellant's guilt having regard to the

probative value of evidence which, if

accepted, would support a conclusion of guilt.

Now, I understand, I hope, entirely the force of

the criticism that you make of what the Court of

Criminal Appeal has done, but if the Court of

Criminal Appeal approached its function in that

way, is there anything in the case, except whether

or not in the circumstances the appropriate

standard for upsetting the jury verdict had been

reached?

MR BYRNE: In our submission yes, Your Honour. It is

accepted on behalf of the applicant that the Court

of Appeal in that passage referred to correctly

identifies the test of unsafe and unsatisfactory,

as laid down by this Court in Chidiac v Reg. The

submission is that - if I can take Your Honours to

the passages preceding that passage - the Court of

Appeal had already misinstructed itself as to its

task and to the probative nature of the evidence

before stating that test.

BRENNAN J:	But if you are speaking simply of the weight of the evidence, is that something which we ought to
grant special leave to canvass? After all, given
the principle which is there stated, does the rest
not all fall into a question of what weight you
attach to this item or that?
MR BYRNE:	The question, we submit, is more far reaching in

that if our submission is correct, and the Court of

Appeal quashed this conviction because there were

alternative means of identification used, rather

than an orthodox identification parade, then the
issue goes further than simply the correct test as

to whether the verdict was safe and satisfactory.

BRENNAN J: Well, that is if the court quashed it simply

because there was no identification parade; once

there is no identification parade, there is no

prospect of conviction. That would be one thing,
but if the court simply said, "and there was no

identification parade", then that does not take it

very far, does it?

MR BYRNE:  We accept we have to go a step further. We have

to say that the court quashed it because there was

no identification parade, but would not have

quashed it had there been one.

BRENNAN J: Well, had there been one, and had there been

that additional identification, then a factual

situation, the assessment which the court would

Meadway 23/6/92

have had to make, would have been a different

assessment.

MR BYRNE:  The issue, Your Honour, is that here there was

not because the accused had declined to

participate.

BRENNAN J:	I understand that.
MR BYRNE:	So that the court was faced with assessing the

test given the full circumstances of the case. It

was not sufficient for the Court to apply the test,

but with the prejudice, if I may use that term,

that the identification evidence was inferior

because no orthodox identification parade had been

conducted.

BRENNAN J: Well, my question to you really is directed to

whether it is a question of saying the evidence was

inferior. Whether the identification parade was

refused or not, none was held, and the question

then remained for the Court of Criminal Appeal, in
the light of all the other evidence that was there

for the Crown, applying themselves to the question
as indicated at page 100, what is the result to be?

Is it not just a fact case?

MR BYRNE: If it is a fact case, we fail. That is accepted.

We have to attempt to say that there is an

important point of principle here and that the

important point of principle we point to is the

weight - I think I can put it that way - to be

given to alternate means of identification where an

accused has exercised his right not to participate.

BRENNAN J: Yes.

MR BYRNE: Different intermediate appellate courts in

Australia seem to have given different weight to

such means of identification, and it is that matter

which we say requires determination by this Court.

If I may just briefly take Your Honours to examples

of those intermediate appellate court decisions.

Chief Justice Malcolm in the case of Dawson, (1990)

47 A Crim R 458, at the bottom of 462 said this:

The evidence of identification of the

appellant in the Mandurah Court of Petty

Sessions on 19 June 1989 stands on a different

footing.

The last sentence on that page:

The appellant was told to sit in the Court of

Petty Sessions while various defendants were

brought before the Court and to leave as soon

Meadway 5 23/6/92

as she identified the offender. Such a

procedure is no substitute for a properly

organised identification parade.

That seems to be along the lines adopted by the

Queensland Court of Appeal. Different approaches,

however, in our submission, have been taken in

other States. Chief Justice O'Brien, of the

Criminal Division of the New South Wales Court of

Criminal Appeal - - -

DEANE J:  Was there evidence that the respondent had refused

to participate in an identification parade?

MR BYRNE: In the instant case, yes, there was.

DEANE J:	How did it get in?
MR BYRNE:	It was led, without objection, as part of the

conversations had with the respondent when police

visited him.

DEANE J: Because, normally - would you suggest that

evidence of refusal to participate in an

identification parade would ordinarily be

admissible?

MR BYRNE:  The only direct authority we can find on that

point, Your Honour, is a Canadian decision of

Shortreed, a 1990 decision, where the court there

held that it was admissible in certain

circumstances. Those circumstances included where

there was either by defence counsel a possible

challenge to the means adopted to

identification - - -

DEANE J: Yes, I follow that, but if there is no attack

based on a refusal to do what Chief Justice Malcolm

says, and that is the properly organized

identification parade, it is very difficult to see

be admissible. any basis on which the evidence of a refusal would

McHUGH J: Particularly having regard to the fact that in

Petty v Maiden, this Court said that - there is a

passage in the judgment that says you cannot give

evidence that the accused refused to answer

questions.

MR BYRNE: That is accepted, of course, Your Honour, on that

particular point, but the other basis given by the

Canadian Court of Criminal Appeal has some

relevance and some strength, in my submission, and

that was where investigators adopt an alternate -

and I keep using that phrase - method of

identification, the jury themselves may question

why police adopted that particular mode, and the

Meadway 6 23/6/92

Court of Criminal Appeal in Canada said that that

was a basis on which the evidence of refusal may

become relevant and admissible.

DEANE J: Except the problem about that is, if the accused

does not attack the absence of a properly organized

identification parade, if his refusal is to be made
a basis for giving greater weight to evidence of

other identification, the right to refuse

participation becomes more than a little hollow.

MR BYRNE:  That is a vexed question on the authorities,

Your Honour. I appreciate Your Honour's point.

DEANE J:  I can see the force of an argument that you should

not, as it were, discount identification evidence

by reason of the absence of an identification

parade if, in fact, the accused has refused to

participate in one, and it may well be that that is

one situation, but I have trouble seeing how you

give greater weight to other evidence by reason of

his refusal.

MR BYRNE:  It is not a question, in our submission, of

giving greater weight; it is a question of not

giving less weight to it, and that is what we

submit the Court of Appeal did in this case. They

gave less weight to it because it was not an

orthodox identification parade, and that is what we

say is an illegitimate approach.

DEANE J: But if the courts are right in saying an

identification parade is ordinarily the preferable

method, it really matters not whether the accused

has agreed or not, provided that is not then made a

basis for criticism of the police investigation of

the Crown.

MR BYRNE:  Well, that is where courts seem to differ. I

have referred Your Honours to

Chief Justice Malcolm.

DEANE J: There is a query about this case, of course, where

the view is open that picking a photo out of 700

photos is far better than any identification parade

I have heard of, but - - -

MR BYRNE:  700 - and picking out someone with short dark

hair. The respondent can probably count himself as

unfortunate as he then coincidentally had long

blond hair, as did her attacker.

DEANE J: But that is not what we are concerned with.

MR BYRNE: That is a factual point, Your Honour, yes. If I

can take Your Honours to two other examples of the

approach to evidence where there has been a refusal

Meadway 23/6/92

and the first, as I mentioned, was

Chief Justice O'Brien in the case of Reg v

E.J. Smith, (1984) 1 NSWLR 462, at 482. This is

the first full paragraph appearing on page 482.

His Honour said this:

It is my opinion, therefore, that where

an accused has specifically refused to engage

in an identification parade to be conducted by

the police, or by his general protestation has

made it clear that he will in no circumstances

entertain any kind of approach •.... the police

may properly, in pursuit of the duty which is

cast upon them to investigate crime, adopt any

alternate approach to his identification and

if there is some element of suggested

unfairness in the form of identification

adopted which does not infringe his right to

refuse to be obliged to enter an

identification parade, he brings this on

himself by obliging the police to adopt some

other means to secure identification, since he

has no right to immunity from identification.

That also goes to the earlier point, I think raised

by Your Honour Justice Deane. The third and final

reference, if I could give it to Your Honours, of

differing approaches is that of Chief Justice Young

of the Victorian Supreme Court; that is in the case
of Reg v Haidley and Alford, (1984) VR 229, at

page 232. At about line 15 on page 232 His Honour

the Chief Justice said this:

I would observe however in relation to

the disadvantage to which Haidley was put by
the fact that he did not know that he was

being identified in the exercise yard by

Mr Sharma that the disadvantage was largely of

Haidley's own making. Of course he had a

right to refuse to enter an identification

parade but he had no right not to be

identified. Provided that there is nothing

unlawful, unfair or improper involved in the

method of identification, an accused cannot in

my opinion claim that there has been a
miscarriage of justice because his refusal to

participate in an identification parade has

placed him at a disadvantage.

The third member of the court in that case, if I

can refer to also briefly, was Mr Justice Brooking.

His Honour began his judgment at page 251 by

saying, at about line 41, with respect to

His Honour, quite candidly and correctly:

Every identification is in a sense

defective: even in strong cases (like those

Meadway 23/6/92

instanced in R v Turnbull) ..... No

identification is perfect. Identification

evidence varies widely in quality.

And it is the quality of identification evidence
which we say the attention of the Court of Criminal

Appeal should be directed to, not the method.

His Honour at page 253, the final reference, begins

about line 3:

The present case also illustrates the

problems that can arise when a suspect will

not take part in an identification parade.

I invite Your Honours to have regard to that

passage, going down to about line 28. If I could

read the final passage, beginning line 24:

To one not used to the occasional

whimsies of the criminal law it might seem

strange that an accused man, having refused

the best possible means of identification,

should then rest his appeal on the ground that

the substitute methods actually used were not

as fair as the one he chose to reject.

And relevantly to the instant case the appeal was

based on the unsatisfactory nature of the

identification evidence. We say that the Court of

Criminal Appeal regarded those methods of

identification as unsatisfactory and inferior and

in doing so they erred. Because of the refusal,

they should have been equal weight with an orthodox

identification parade.

The question is one which, in our submission,

is open; that is, there is no authority by this

Court on the point. In Alexander v Reg, two

members of this Court, Justice Mason, as he then

was, and Justice Murphy left open the possibility

that alternate methods of identification can be used where there was a refusal or an inability to	take part. But, of course, because the point did
not arise, no guidance was given to Australian
courts as to what weight or what approach should be
taken to evidence of this sort. The submission is
that the point arises strikingly in this case and this is a suitable vehicle for consideration of the
point.

The final aspect is this: the difference in

approach of intermediate courts of appeal is

exemplified by the present case when contrasted

against the recent decision of the Victorian Court

of Criminal Appeal of Vincec, (1990) 50 A Crim R

203. Vincec had quite remarkable similarities with

the present case on a factual basis. There was

Meadway 9 23/6/92

limited time to observe the appellant; five

seconds at a distance of a metre, and about a

minute through the space between the front seats,

and another glance, it would appear, through the

boot of the car.

The only evidence of the involvement was the

evidence of identification. There was sworn
evidence given by the appellant there that he was

not involved - alibi evidence was called. The

identification had taken place from a folder of

photographs, he having refused to participate in a

line-up parade. There were, it would seem from

page 207, discrepancies between the description

given by the complainant to the police and with the

appellant, and yet the Court of Criminal Appeal

summed up its approach to evidence of this sort at

page 211, about half-way down the page, in this

way:

The final ground is that:

"The conviction is unsafe and unsatisfactory

by reason of -

(a) the weaknesses in the identification

evidence .....

We are firmly of the view that the

convictions were not unsafe or unsatisfactory.

If the jury accepted Miss De Bono as reliable

and accurate the case against the applicant

was one of some considerable cogency. A jury

having heeded the clear and emphatic warnings

this jury was given would be left free to act

upon the sole identification evidence before

it and any verdict of guilt that then followed

could not be characterised as one that was

possibly the product of a miscarriage of

justice.

We respectfully submit that that is the correct	approach. The approach adopted by the Court of
Appeal in the present case differs from that in that the jury was not so left free, being properly instructed, and the alternate means of
identification were given lesser weight than they
would have been of an orthodox identification
parade. We submit that is an important point of
principle and that this case is a suitable vehicle.
Those are our submissions.

BRENNAN J: Thank you, Mr Byrne. we need not trouble you,

Mr Claire.

MR CLAIRE:  Thank you, Your Honour.

Meadway 10 23/6/92

BRENNAN J:  The Court is not persuaded that the

circumstances of this case are such as to warrant a

grant of special leave to appeal to the Crown.

Accordingly, special leave will be refused. The

refusal of special leave should not be understood

as involving an endorsement by this Court of a

requirement that an identification parade is

necessary in every case where identification is in

issue and the accused was unknown to the victim and

has declined an opportunity to participate in an

organized identification parade.

The Court is indebted to counsel for the Crown

for the clarity of the presentation of the Crown's

case.

AT 4.50 PM THE MATTER WAS ADJOURNED SINE DIE

Meadway 11 23/6/92