AT CANBERRA ON THURSDAY. 9 AUGUST 1990, AT 9.48 AM
(Continued from 8/8/90)
Copyright in the High Court of Australia
DEANE J: Yes, Mr Grace.
MR GRACE:
Thank you, Your Honour. At the close yesterday,
Your Honours, I referred you to an extract from a
book by Yarmey as to possible areas that courts may
consider in relation to the advance of psychology or psychological science, as he phrases it, over
the years. That book, of course, was written in
1979 and since that period of time there have been
further advances which further, in my respectful
submission, imply that courts should give much
stronger consideration to the entry of evidence of
this nature.
At the trial of the applicant - if I could ask
the Court to refer to the application book, at
page 252 - it is volume 2 of the application book
the application was made by trial counsel for the
admission of this evidence. If I could read from
the bottom of page 252:
MR VAN DEWIEL: From the Crown.
There is a
matter that concerns me, and concerns me very
deeply in the way in which the defence can be
run and that relates to the admissibility of
expert evidence in terms of identification. I refer to the witness with whom I have only had a brief conversation. From that conversation, I ascertained that he is certainly an expert
and that his field of expertise is certainly a
scientific one.
One would say on that basis
that it is one that is appropriate to be left
before a jury in a case such as this one. He
is a man with whom Your Honour is probably
familiar, in the sense of having heard of him,
and that is Dr John Thomson -
it is actually Dr Don Thomson -
who is a lecturer in psychology at Monash
University.
HIS HONOUR:
I know who Dr Thomson is.
MR VAN DEWIEL:
I might say the learned
Prosecutor might learn of him.
He has written
and made studies in the dangers inherent in
the problems of identification.
I am
concerned to raise it on a voir dire before a
trial commences proper because, in my
submission, it would be of considerable
importance in terms of the manner and extent
to which I would cross-examine, with my
learned junior, the witnesses who the Crown
proposes to call in respect of the issue of
cross-examination.
On that basis, it would be
our submission that it would be appropriate
Smith
14
9/8/90
for a voir dire to be embarked upon prior to
the commencement of the trial or,
alternatively, prior to the calling of the
identification witnesses.
To…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Smith v The Queen [1990] HCATrans 172
Case
[1990] HCATrans 172
Decision Date
CaseChat Overview and Summary
This matter concerns an application for special leave to appeal to the High Court of Australia, brought by the applicant, Smith, against the Queen. The dispute centres on the admissibility of expert evidence concerning the fallibility of eyewitness identification. The transcript indicates that the application was being heard by Deane J.
The primary legal issue before the court was whether expert psychological evidence regarding the unreliability of identification procedures should be admitted in criminal proceedings. This involved considering the extent to which such evidence, particularly from a specialist in the field of psychology and identification, could be presented to a jury. The court also had to determine the appropriate procedural mechanism for resolving such admissibility questions, with a suggestion for a voir dire to be held prior to the calling of identification witnesses.
The court was presented with arguments that advances in psychological science, specifically concerning the fallibility of human recognition and identification, warranted greater consideration by the courts. Counsel for the applicant sought to adduce evidence from Dr Don Thomson, a lecturer in psychology at Monash University, who had specialised in the dangers and problems inherent in identification. The Crown prosecutor expressed deep concern about the potential impact of such evidence on the defence and cross-examination of witnesses, advocating for a voir dire to address the admissibility of this expert testimony before the trial commenced. The court acknowledged the need to resolve preliminary questions regarding the nature of the evidence sought to be adduced and its legal basis.