Sclaptsi v The Queen

[1990] HCATrans 178

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A43 of 1989

B e t w e e n -

JIMMY SCLAPTSI

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

MASON CJ
BRENNAN J
DEANE J
TOOHEY J

McHUGH J

Sclaptsi 1 21/8/90

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON TUESDAY, 21 AUGUST 1990, AT 3.35 PM

Copyright in the High Court of Australia

MR M. DAVID, QC: If the Court pleases, I appear

with MR G.P. PATEL, for the applicant. (instructed

by Patel & Co)

MR J.J. DOYLE, QC, Solicitor-General for South Australia:

If the Court pleases, I appear with

MISS A.M. VANSTONE, for the respondent.

(instructed by the Crown Solicitor for the State of

South Australia)

MASON CJ: Yes, Mr David.

MR DAVID:  If the Court pleases, the one point upon which

special leave is sought, and in my submission, is

of fundamental importance, is whether the

principles in Bunning v Cross apply when

considering the discretion mentioned in the case of

Alexander v The Queen, namely, the discretion to

exclude photographic identification of a suspect

when there has been no identification parade.

In my submission it is important, both in the administration of justice and in this particular

case, because the trial judge placed significant

importance on the principles of Bunning v Cross in

considering that exclusionary discretion under

Alexander's case, having found after a voir dire

hearing, as a matter of fact that the applicant was

a suspect when the photo identification took place

and that there should have been an identification

parade. Whether he considered the exercise of his

discretion in the proper way is the subject, in my

submission, of special leave in this case, and it

is that one point which I wish to argue.

If the Court pleases, the applicant pleaded

not guilty to four counts of rape - digital, anal,
oral and vaginal - all of which took place over a

period of about two hours on 12 July 1987 in the

early hours of a Sunday morning. The case was

fought on the basis of identification and virtually

nothing else. It was never suggested that the

female victim was not raped, only that the attacker

was not the applicant.

Very briefly, the victim had been drinking at

a hotel in a street called Hindley Street. She was

on her way back to another hotel where she was

staying. She was approached by a man whom the jury

found to be the applicant, who threatened her and

forcibly had digital intercourse with her. She was

then forced into a lane way some distance away and

there three other acts of rape occurred, all the

subject of the charges. The events took place over

a period of about two hours in varying degrees of

darkness.

Sclaptsi 2 21/8/90

Shortly after the event she made a complaint

to a couple who lived at the hotel where she was

living, and on 22 July some ten days later, she was

shown a number of slides. Those slides did not

include a slide of the applicant, and she could not

identify her attacker in those slides.

Some six months after that, on 27 January 1988

the investigating police officer, by reference to a

computer and to a comparable rape that she was

investigating, was of the view that the applicant

could be the perpetrator of these crimes. She,

having apprised herself of that knowledge, gathered

12 slides, one of which was the applicant's, and on

30 January, about six months after the rapes, she

went to the applicant's home and an identification,

by way of showing her these 12 photographs, took

place. Twelve slides were shown. The victim

picked out the seventh slide as being the

applicant.

The next day the applicant was arrested. He

denied the charge, although the denial was a very

short denial. He then exercised his right to

remain silent, and certain clothing was taken from

his premises.

Before the trial, defence counsel made an

application which was successful to have a voir

dire. The voir dire was to determine whether the

photographic identification should be allowed in

evidence, whether both the identification by way of

photographs, and indeed the tendering of the photographs themselves, should be allowed in

evidence. His Honour rejected that application.

The trial proceeded. The evidence by way of

identification of photographs was allowed, although

the photographs were not tendered.

At the trial there was an in dock

identification by the victim, and the victim also

gave evidence that she remembered about a week and

a half after the rapes took place, but not when

initially interviewed by the police, that the

person who had raped her she had seen about two

years previously for a period of about three or
four minutes at a hotel. At the trial the

applicant did not give evidence and was convicted

on all four counts.

If I might just complete my brief appraisal of the facts, there was some supporting outside

evidence for the identification by the victim but I

think I can quite safely say that that supporting

evidence of itself did not create a case to answer.

That supporting evidence, very briefly, was,

firstly, at the first act of digital intercourse

Sclaptsi 21/8/90

there were two other men present and one of them

referred to the applicant by his first name, Jim.

The girl also gave evidence that the attacker said

he lived at a suburb which was, in fact, the suburb

that the applicant lived at. She described a

jacket which her attacker was wearing which there

was evidence about from a witness called Taylor,

was similar to a jacket that he had seen the

applicant wear although a similar jacket was not

found at the applicant's home when the police went

there.

There was a white jumper found at the

applicant's home which the victim said was similar

or almost the same as the white jumper her attacker

was wearing; and there was one pubic hair on her

clothing which was consistent with a pubic hair

corning from the applicant.

They are basically the outside pieces of

evidence which supported the identification,

although it is my submission, and I do not think

there is any argument, that they of themselves

could not create a case to answer.

BRENNAN J:  Mr David, was there another pubic hair which

could not have come from the applicant?

MR DAVID:  Yes, there was, if Your Honour pleases, an orange

coloured pubic hair which could not have come from

the applicant, among the pubic combings of the

victim.

I add that there was no argument about the

learned trial judge's charge to the jury. The

argument is about the way in which he exercised his

discretion to allow the photographic

identification. He gave all the appropriate

identification warnings. He in a sense assisted

the defence by saying that although we have some

evidence that she might haye seen this man two

years before it would be safest if the jury treated

this case as an identification by a complete
stranger because it was so fleeting;	and he gave a

thorough summing up in relation to the dangers of

identification by way of photographs and pointed

out the obvious dangers that there are: the nature
of the photographs, the fact that it might tend to

show that the accused has been in trouble with the

police, and the fact that it is all done in the

absence of the accused.
If the Court pleases, in my submission the

question of special leave surrounds his written

rulings as to why he allowed the evidence to be

admitted, or did not use his discretion to exclude

pursuant to Alexander v Reg. And those written

Sclaptsi 4 21/8/90

reasons are at page 422 of the appeal book, and I

refer to those briefly.

If I might start at page 423 under the

heading, The Identification by Photographs,

His Honour briefly outlined the facts, briefly

outlined the police officer coming across the

information, and at the bottom of page 424 says:

It goes without saying that a properly

conducted police line-up in the course of
which the accused is requested to take his
place amongst a number of other men of similar

physical characteristics is a more

satisfactory method of identification than a

procedure limited to the showing of a series

of photographs to a witness. The difficulties

inherent in the showing of photographs are

referred to in Alexander v R. Photographs are
two dimensional and static; the absence of

the accused or his representative means that

the fairness of the procedure cannot be

monitored at the time or tested as thoroughly

subsequently; there is a "displacement

factor" which renders it inappropriate to hold

a proper line-up subsequently, and there is

the danger of the jury concluding that the

accused was known unfavourably to the police.

There was no suggestion in the present

case that evidence of the photographic

procedure undertaken by Miss O'Donoghue was

legally inadmissible. However, I was asked to

exclude the evidence in the exercise of my

discretion. The starting point in the

argument was that a photographic line-up

should not have taken place bearing in mind

the information then in the possession of the

police. In Alexander's case Stephen J. draws

a distinction between the detection process

when police are endeavouring to find out whom

they should arrest and charge and the

evidentiary process aimed at providing proof

in court that the accused is in fact the

offender. Difficulty may arise when

photographic identification is employed in the

evidentiary process. In the same case

Gibbs C.J. adopted the following principle

stated in R v Russell -

and then he quoted the well known dicta from that

case which was oft quoted in Alexander v Reg.

In R v Carey the learned Chief Justice

spoke of the investigation reaching the stage

when "the appellant was a definite suspect."

Sclaptsi 5 21/8/90

Then His Honour went on:

After considering all the circumstances

in this case and in particular the features of

the Thornhill case -

That was the one on the computer which was comparable -

which bore a similarity to identifying

features crucial to the present case, I am of

the view that the police should have conducted an identification parade. I have attempted to

avoid reasoning with the benefit of hindsight,
but it is obvious that the accused was a
suspect at this stage and in my view it would
not have been unreasonable to have requested

him to attend a line-up.

So, in my submission, he gets to first base as far

as Alexander v Reg is concerned. There is a

suspect and there should have been a line-up. He

then goes on to consider matters in relation to his

discretion:

Nevertheless, the question is

substantially one of degree, and on the matter

of the exercise of the discretion which, in

view of my finding that an identification

parade was called for, I now have to consider,

I think, that the remarks of the learned

Chief Justice in R v Deering at page 255 are
pertinent. In that case the trial judge
reached the conclusion that an identification
parade was unnecessary and the learned

Chief Justice commented -

and he quoted from that case -

"the learned Judge obviously thought that the

present case lay in that grey area.

attached importance to the fact that He

Detective Jaensch did not himself suspect or believe that the appellant was the guilty

party. Opinions might differ about this. I

think that speaking for myself I would say

that the proper procedure in the factual

situation which existed in the present case

was to ask the appellant whether he would be

prepared to participate in a line-up. But I

acknowledge that it is by no means a clear

matter and that different police officers
might judge the matter in different ways and

indeed different judges might judge the matter

in different ways."

Sclaptsi 6 21/8/90

I a:m firmly of the view that

Miss O'Donoghue genuinely believed that an

identification parade was unnecessary and, if

I am right in taking the contrary view, then I

regard the failure to arrange an

identification parade in this case as no	more
than an error of judgment on her part in	an
area in which opinions may well differ.	This
case is very much within the "grey area"

referred to in R v Deering, and although it is

not the sole determining factor in the

exercise of my discretion, this is certainly

not the sort of case in which the importance

of discouraging intentional and improper

investigation practices play a role.

If I could pause there. In my submission, the learned trial judge has there given, what I might

call, a Bunning v Cross test; a balancing of public

interest and interests in relation to police

officers not going beyond the bounds of their duty.

In my submission, that is a totally inappropriate

test and that the test in Alexander's case - which

I will come to in a moment - is a test of fairness;

that this is not inadmissibly obtained evidence or

improperly obtained evidence. As Alexander's case

says quite clearly, it is perfectly admissible

evidence but it is a matter of the discretion being

based upon the fairness of the evidence and ahead

of that fairness is whether its prejudicial effect

outweighs its probative effect.

Also, the words of the former Chief Justice, that it should only be used in exceptional

circumstances where there is a suspect and where

there is no line-up. If the Court pleases, it is

my submission that although he said it is not the

sole factor, it is a very important factor; namely,

the propriety of the police officers and the fact

that they did not behave i~properly, or did not

behave deliberately. It is an important factor in

the exercise of his discretion and, in my

submission, he has based it on the wrong exercise

and on the wrong factors.

He then goes on and considers other heads of

Bunning v Cross:

I have considered the tests which I regard as

relevant to the exercise of my discretion in

this matter. In the first place I have

considered the matters referred to in the

joint judgment of Stephen and Aickin JJ in

Bunning v Cross.	They include the seriousness
of the offence -

Sclaptsi 7 21/8/90

I pause there. In my submission, "the seriousness

of the offence" cannot bear upon the question of

the discretion in Alexander's case, whether it be

murder or whether it be larceny. In my submission,

the appropriate test is one of unfairness -

whether there has been a deliberate disregard

of a safeguard for the individual -

In my submission, that is very similar to the first

point. Whether the police behaved deliberately or

not, in my submission, the question is the

unfairness of the evidence.	He then goes on and
says:

It may be, however, that there is a more

relevant test of the exercise of the

discretion in cases such as the present and it

is interesting to note that Bunning v Cross

receives no more than a fleeting reference in

Alexander's case.

He comes back a little from Bunning v Cross, having

said what he said.

The other test was referred to by Gibbs CJ

where his Honour stated -

and quoting from His Honour the Chief Justice:

"The authorities support the conclusion that I

have reached, which is that, as a matter of

law, evidence of an identification made out of
court by the use of photographs produced by

the police is admissible. However, a trial

judge has a discretion to exclude any evidence

if the strict rules of admissibility operate

unfairly against the accused. It would be

right to exercise that discretion in any case

in which the judge was of opinion that the

evidence had little weight but was likely to

be gravely prejudicial to the accused."

In my submission, that is the correct test but not the test that His Honour first applied.

I have already referred to the dangers of

photographic identification although in a way

it can be said that these dangers are present whether the photographic identification takes

place during the detection process or the

evidentiary process. As Mason J (as he then

was) said in Alexander's case:

"The concession that the evidence is

admissible and properly receivable in such

circumstances acknowledges that it has

Sclaptsi 21/8/90

probative value and that its probative value

may outweigh its prejudicial effect. If

identification evidence of this kind is

acknowledged to have probative value which

outweighs its prejudicial effect, when the

identification is made before the accused is

taken into custody or before he becomes a
definite suspect, there is no strong reason

for denying the same value to evidence of the

same kind when the identification is made at a

later stage. An element of unfairness in

failing to arrange an identification parade

may intrude, but the balance between probative value and prejudicial effect in the eye of the jury will remain unaltered."

His Honour went on:

It seems to me -

and then he dealt with his fairness test -

It seems to me that in the present case the

prejudicial effect of some of these matters

may not be as great as they are in some other

cases. The witness was not shown one photograph by itself, but a series of

photographs of young men. The "displacement

effect" is not as significant as it is in many

cases. Finally, from what we know of the

identification procedure itself it appears to

have been fairly conducted although as I have

pointed out one is dependent to a certain

extent on the word of the police officer in
the absence of any independent person or a

representative of the accused at the

procedure.

The fact that Miss Marks identified the

seventh photograph as that of her attacker as

soon as she saw it and that, leaving aside the

decision to show the slides to Miss Marks, the

procedure appears to have been conducted

fairly has resulted in evidence of substantial probative value and in my view, this outweighs

any prejudicial effect which the evidence

might have.

Out of abundant caution I have also considered the application of the unfairness test

referred to in Reg v Lee, but in view of the

matters discussed above there could be no

justification for the exclusion of the

evidence based on those principles.

If I might pause there. That, of course -

Reg v Lee is totally inappropriate, in my

Sclaptsi 21/8/90

submission, because that only applies to

confessional material.

In the exercise of my discretion I will allow evidence of the photographic identification to

be given although I should add that the usual

warnings relating to identification evidence

in general and photographic identification in

particular will have to be given.

If the Court pleases, in my submission, the

first part of those written reasons for why he

allowed the photographic identification, in my submission, constitute the matter which, in my submission, is of fundamental importance; a

straight reliance on Bunning v Cross. I add, from

the passages that have already been quoted in

Alexander's case - and I will not go to the case

and quote them again - that Bunning v Cross

principles have no part, in my submission, in that

Alexander discretion.

Although the learned trial judge has then gone on and talked about fairness, it is abundantly

clear, from a reading of his reasons, that the

Bunning v Cross factors were very important in his

mind and, in my submission, that fundamental

mistake is confirmed by the Court of Criminal

Appeal in their judgment at page 440. It starts at

page 435 but in the main judgment of His Honour the

Chief Justice, matters which just virtually repeat

His Honour's written reasons are discussed and

then, at page 440, His Honour the Chief Justice

says:

It seems to me that his Honour gave careful

consideration to all the factors which properly bore upon the exercise of his

discretion. I can see no indication that he

was acting upon any wrong principle or failed

to take account of any·relevant or extraneous factor. He exercised his discretion after a

careful consideration of all the relevant

matters and I can see no basis upon which this

Court should interfere with the exercise of

that discretion.

In my submission, the Court of Criminal Appeal

in this State, if the Court is with me in my

argument, must be appraised of the fact that the

Bunning v Cross principle does not apply to this

discretion of Alexander v Reg because, in my

submission, it can have no relevance whatsoever as

a matter of logic that the police behaved

mistakenly or deliberately or whatever. In my

submission, the whole concept and the whole thrust

of the discretion in Alexander's case is to guard

Sclaptsi 10 21/8/90

against the natural dangers of identification being

exacerbated.

If the Court pleases, although it is not a

matter of special leave when he did consider

questions of fairness and unfairness, it is my

submission that he left out two significant

factors. One of them is - that passage of the

former Chief Justice, in Alexander's case - that

given that there is a finding that it is a suspect;

given that there is no identification parade and

the consideration of the exclusionary discretion,
it should only be in exceptional circumstances that
the evidence is allowed.

Secondly, His Honour does not mention, in the

question of fairness, the question of the time. In
Alexander's case, of course, the photographic

identification was very shortly after the alleged

offences. In this case it is six months and, in my

submission, that gives no comfort for this type of

evidence being led to a jury.

BRENNAN J:  Mr David, at the time when the second set of

pictures was shown to the prosecutrix, what grounds

were there for suspecting the present applicant?

MR DAVID:  Yes. If the Court pleases, there was - on a

computer a police officer saw a similar offence

involving the accused, or the applicant; it was at

the same place the offence took place; the name of
the person was Jim; he was of ethnic origin and he

lived in the same area and the police officer was

of the view that he may have been the perpetrator
of the crime.

If I could just add to that, as a matter of

evidence at the trial itself, the police officer

acceded to the suggestion - at page 373 of the

appeal book - that he was a suspect. Question 28

on page 373:

There's no secret of the matter, this was part

of your investigations, that when you went

down on 30 January you deliberately had

Mr Sclaptsi's slide there because, of course,

he was what might be called, at this stage, a
suspect.

And she said, "Yes".

DEANE J: But if your submission is right would it matter

whether the photo was shown at the detection stage

or at the suspect stage because you say the only

question will be whether the probative value is

outweighed by its prejudicial value?

Sclaptsi 11 21/8/90

MR DAVID:  No, I do not suppose it would make any

difference, if Your Honour pleases, but -

DEANE J: Which means it would be a great alteration in the

current understanding of what is permitted or of

what is acceptable?

MR DAVID:- Yes. In this particular case, however, if it was

going to be a matter of evidence and she did

suspect him there was no reason why she should not

have a line-up and the learned trial judge held

that to be so.

DEANE J:  Except Justice Prior expressed the view, or one

of the judges expressed the view that it was still

in the detection stage and - - -

MR DAVID:  He had doubts about that, yes, I think, in his

judgment. The learned trial judge, having heard

the evidence on the voir dire found, quite firmly,

that it was at the evidentiary stage.

DEANE J: But the point of your submissions, it must be

irrelevant if public policy and deterrence of police unfairness and so on are all to be put

completely to one side; it must be irrelevant

whether it was detection or suspect or gathering

evidence.

MR DAVID:	I suppose, in the detection stage, if Your Honour pleases, there is the possibility that it will not
be used in evidence, whether it is deliberate or
not, whereas at the evidentiary stage there is
that risk that it will be used as evidence whether
it was intended to be or not.

DEANE J: But if it is the detection stage and not used in

evidence, would not your approach then be that any

other form of identification, including

identification in court, was excluded as tainted?

MR DAVID:  There would be problems with that, yes, which is

was the situation in Alexander's case. If the

the reason why they should have had a line-up.

Court pleases, there is one other small portion of

Alexander's case that I wish to read from and that

is a very small part - the only part that mentions

Bunning v Cross - and that is from a passage from
Your Honour the Chief Justice's judgment at

page 431 and Alexander's case was, of course, very

similar to this case except, of course, that there

was a greater difference in the time between the

two. Your Honour said:

The trial judge in the present case recognized

that he had a discretion to exclude the

Sclaptsi 12 21/8/90

evidence of Beale, and later that of Williams.

evidence did not outweigh its probative value. He decided that the prejudicial effect of the

The applicant, in attacking this exercise of

discretion, relies, not only on the English

decisions already mentioned, but also on the

principle applied in Bunning v Cross.

Bunning v Cross provides no support at all for the applicant. There, the evidence was

illegally and irregularly obtained. None the

less it was held that its cogency required

that it should have been admitted. Reference

to Bunning v Cross does not reveal the

existence of a relevant factor omitted by the

trial judge in exercising his discretion to

admit the evidence.

If Your Honour pleases, the thrust of my

submission is that questions of police propriety,
in my submission, are really irrelevant in the

consideration of this discretion and, in my

submission, it is the fairness that must be looked

at according to the principles of Alexander v Reg

and, in my submission - straying away from the
special leave argument - even if one looks at the

situation here there is nothing which makes or

overcomes the inherent unfairness of photographic

identification.

In my submission, the number, really, does not take the matter much further. It was done six

months later; it was done in the absence of the

applicant and, in my submission, it matters not

whether the police were mistaken or did it

deliberately, according to the principles of

Alexander v Reg. If the Court pleases.

TOOHEY J: Could I just ask you this, Mr David: does that

mean that you identify unfairness in the very fact

of the method of identification used, or do you find it in the particular circumstances of this

case, or what?

MR DAVID: 

If Your Honour pleases, I cannot find it in the

very fact of photo identification because, of
course, that means every photo identification would
not be admitted and that is, of course, not so but
in the circumstances of this case it is my

submission that the time is the most relevant

factor; that that exacerbates and adds to the

danger of photographic identification, namely six

months.

TOOHEY J: And in what way does it exacerbate it?

Sclaptsi 13 21/8/90

MR DAVID: Well, the longer the period the more dangerous

the identification in this way and the more

safeguards there should be.

MASON CJ:  The Court will take a short adjournment, Mr

David, to consider the course it will take in this

matter.

AT 4.06 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.18 PM:

MASON CJ:  The Court need not trouble you, Mr Solicitor.

The Court is not persuaded that there is sufficient

reason to doubt the correctness of the decision of the Court of Criminal Appeal. The application for

special leave to appeal is therefore refused.

AT 4.19 PM THE MATTER WAS ADJOURNED SINE DIE

Sclaptsi 14 21/8/90