Smith v The Queen

[1990] HCATrans 172

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No Ml of 1988

B e t w e e n -

MARK ANTHONY SMITH

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

DEANE J

DAWSON J

TOOHEY J
GAUDRON J

McHUGH J

Smith 13 9/8/90

TRANSCRIPT OF PROCEEDINGS

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 embark on that

otherwise would create a calamitous situation

in terms of fairness to the accused.	I am not
in a position to call Dr Thomson today.	He is
just not available.	He would be available
tomorrow morning.

And then there is some discussion about time

aspects.

A:t5aug9.cl At page 260 of the application book,

towards the bottom of the page, His Honour asks

counsel a question as to:

what it is that you want to adduce from the
witness -

and if I could read from His Honour's comments:

As I said, there are a number of questions to

be resolved before I am even prepared to hear

what Dr Thomson has to say. First among
those, Mr Van de Wiel, is what it is that you
want to adduce from the witness, and how in

law what it is that you wish to adduce can be

received.

MR VAN DEWIEL: Firstly, if I can say this:

it would be my submission to Your Honour that

Dr Thomson is a man who, because of his

training and particular chosen discipline

within his training as a psychologist, has

made a speciality of the fallibility which

exists within the identification or what might

otherwise be loosely described as the

recognition process with which people indulge

almost daily in their minds.

What is sought to be adduced from

Dr Thomson for the purposes of this trial,

Your Honour, are the factors which influence

an individual - by that, I mean a normal

individual - in the course of an

identification - sorry, potential errors that

an individual would make in the course of an

identification or admission such as the jury

ought to be aware of those potential errors

when they consider whether or not they would

accept the evidence of this condition.

I pause here, Your Honours, because it would appear

that His Honour is now saying the next sentence

which is:

Smith 15 9/8/90

So what he is to give evidence about, if permitted to do so, is the behaviour and capacity of a normal individual?

MR VAN DEWIEL: Yes, in a sense of how that

mechanical process operates within the

individual.

HIS HONOUR: Within a normal individual.

MR VAN DEWIEL: Certainly. One must accept

that he is talking about the norm; he cannot

give evidence about the particular.

HIS HONOUR:  Is it, given that he has made a

particular study and may otherwise qualify in

the sense that he has made a study of a field

of knowledge which can be described as

scientifically based, open then to say that he

can give evidence about a normal person?

MR VAN DEWIEL: In my submission, the extent

of his studies, taken on the broad spectrum of

surveys that he has done within the community,
has led him to be in a position where he can

give evidence of the fact that the behaviour of what might be described as the norm is in

fact contra to what is expected of him, and on

that basis it would be my submission that that

is an area of speciality. If his evidence was

to do no more than simply say, "People are

prone to make mistakes", that certainly would

not be, in my submission, permissible .

. The extent of his studies has shown that

the nature of errors are not necessarily those

which are to be expected, but rather such as

to, if you like, go beyond merely a

description of such terms as "People make

mistakes". Rather, he can break down the

recognition process into various factors in

indicating where the potential errors lie in

each step of that process, and on that basis	it would be my submission to Your Honour that
it is an area of speciality which would be beyond the ken of the ordinary citizen, if not beyond the ken of most members - and I say
this with the utmost respect - of the Bench.

The authorities that Your Honour has to

comply with in terms of the directions to

juries, such as Burchielli's case and so on,

do contain within them - this is the

requirement that Your Honour gave to the jury

- specific warnings about the dangers which

have become known to the legal profession,

which exist, but in my submission, that

Smith 16 9/8/90

direction which is required to be given by

Your Honour does no more than, in essence,

just remind the jury that people are fallible.

DEANE J: That would really mean, would it not, that expert

evidence could be given and you could have a fight

among experts on any case where the senses of any

witness who gave evidence was involved? I mean, if

it was a matter of sight you can call your experts

as to what is involved in seeing something. If it
is smell you can call your experts as to what is

involved in smelling something - taste, feel, the

whole works.

MR GRACE:  I would answer that in this way, Your Honour, by

saying that there would be a caveat attached to

that proposition in that it would only be

applicable where the central or sole issue of the

trial was that particular sense that the field of

expertise was called.

DEANE J: But your main problem is, is it not, that except

in certain defined fields, and of course they are

not finally closed, the experience of the law has

been that far and away the best way of dealing with

these things is by an informed direction from the

trial judge?

MR GRACE: Well, if one turns to the problems of

identification evidence, the trial judge can

certainly go at great lengths to discuss with the

jury, or caution the jury, as to the dangers

inherent, and he can give examples directed to the

facts of that particular case.

DEANE J: Well, he not only can, he must.

MR GRACE:  He must certainly in Victoria; I cannot say for the other states of Australia. I understand New

South Wales might have a different requirement, but

certainly in Victoria he must, and Burchielli's

case is a prime example of that. But the trial

judge can not explain to the jury why it is that a

normal human being makes those sort of mistakes.

The jury is presented with, and particularly

in the applicant's case, eyewitnesses who, it is

conceded, were giving honest evidence. There is no

suggestion at all that they were lying or telling

untruths at all in their belief as to who they had

identified. All the judge can say to the jury in

that circumstance is, and to adopt what the defence

argument was, "These people are honest, but

mistaken".

DEANE J:  No, what the judge can say to the jury is, "You

have to be conscious of the dangers of this sort of

Smith 17 9/8/90

evidence". What you are saying is that he - I do

not know in Victoria, but elsewhere the example is

always given, you all have the experience of - what

you are saying really is that the process should go

further and the jury should be told, "Now, you've

got to act on this basis and we will now give you

the psychological and other reasons and

explanations, and so on, why identification

evidence can be unreliable".

MR GRACE:  In an appropriate case, it would be my submission

that that is a proper course.

DEANE J:  I can follow that, but we really do ultimately

come to this question whether in this particular

field a new exception should be made to the general

proposition that questions like this, even though

expert evidence may impugn upon them, are

essentially matters for the jury.

MR GRACE:  Yes. Well, on that very point, if I could

perhaps refer to Wigmore and his comments on that

particular area - - -

DAWSON J:  While you are doing this, can I suggest to you

that it is not a question of whether the evidence

is relevant - clearly it is - it is a question of

whether it is helpful and it may not be helpful to the jury because they have to proceed on their own experience in any event. To explain why something

happens in psychological terms - you can do that

with any human reaction, but it may not be helpful

at all.

MR GRACE:  Yes. Well, members of the jury may not be aware

as to why a person could be honestly believing

that he saw someone, be adamant in his or her

evidence that he has seen a particular person and

what the process is within that person's mind.

DAWSON J:	They may not know why i~. psychological terms, but in terms of ordinary human experience they will
certainly know it is the fact, and if they do not
they will be told by the judge anyway.
MR GRACE:	Yes, and they were told in this case by the judge

exactly that. However, the temptation is that when

an eyewitness is unshaken in his testimony there is

still the realization on the part of the jury, when

they are faced with that unshaken evidence, which

is subject to the rigors of cross-examination, and

in this case there was some lengthy

cross-examination of the three eyewitnesses that

were relevant, and the jury is left with the

situation where, sure enough, the trial judge has

warned them that there are dangers. People can

make mistakes, but there is no basis upon they can

Smith 18 9/8/90

act to make a finding that these very witnesses

have made mistakes.

DAWSON J: But there surely is. They would be told or would

want to know the length of time that they have had

to observe the man on a previous occasion; the
length of time between the previous observation and

the observation which they are comparing on the

instant occasion - all of these matters - of course

they would.

MR GRACE:  Those matters are put, yes, I agree, Your Honour,

but the jury, in my submission, is not privy to the
workings of the mind; they do not understand how

the mind operates and, with respect, us lawyers

probably do not know the psychological bases upon

which the thought processes of each of us - - -

DAWSON J: But we do know a lot as a matter of ordinary,

human practical experience and that is the way in

which trials are conducted. It is only where the
psychological evidence, or scientific evidence,

would explain something in a way that the jury

cannot explain it for themselves. That does not

mean to say that you have to go into a scientific

investigation of the outcome; the jury knows the

outcome of all of this. But, anyway, you were

going to refer - - -

MR GRACE:  To Wigmore. Well, I suppose the dichotomy is

whether this sort of evidence is of assistance to

the jury. If it is of assistance then, in my

submission, it should be admitted.

DAWSON J: Well, I think that is the right question.

MR GRACE: Yes, and in terms of usurping the jury's function,

if I could just turn to Wigmore. It is Wigmore on

Evidence, Chadbourn revision, at paragraph 1920. There are two extracts from Wigmore which I have

caused to be photocopied, Your Honours. At

paragraph 1920 Wigmore says this - the heading is

"Usurping the function of the jury".

A phrase, often put forward as explaining why

the testimony we are concerned with is

excluded, declares that the witness, if

allowed to express his "opinion," would be

"usurping the functions of the jury." A

milder form of statement is found in a few

earlier passages.

And there is a quotation from an American decision

in 1816, and then further:

And then further:

Smith 19 9/8/90

In the United States, the stronger and

vituperative charge of "usurpation" was later

made.

And there an 1840 decision, Chief Justice Nelson in

Lincoln v Saratoga was quoted.

Opinions, belief, deductions from facts, and such like, are matters which belong to the

jury and by which they arrive at their

verdict. When the examination extends to

these, and the judgment belief, and inferences

of a witness are inquired into as matters

proper for the consideration of a jury, their

province is in a measure usurped; the

judgment of witnesses is substituted for that

of the jury.

Wigmore comments:

This phrase is made to imply a moral

impropriety or a tactical unfairness in the

witness' expression of opinion.

In this aspect the phrase is so

misleading, as well as so unsound, that it

should be entirely repudiated. It is a mere

bit of empty rhetoric. There is no such

reason for the rule, because the witness, in

expressing his opinion, is not attempting to

"usurp" the jury's function; nor could if he

desired. He is not attempting it, because his

error (if it were one) consists merely in

offering to the jury a piece of testimony

which ought not to go there; and he could not

usurp it if he would, because the jury may

still reject his opinion and accept some other

view, and no legal power, not even the judge's

order, can compel them to accept the witness'

opinion against their own. That there is no

hidden danger of "usurpation" lurking here,

and no need of invoking sentiment to repel it,

will be clearly seen if we remember that the

improper evidence is equally inadmissible

before a judge sitting without a jury.

Whatever the organization of the tribunal, it

is not to waste its time in listening to

superfluous and cumbersome testimony.

And then His Honour goes on to discuss - rather not

His Honour, Professor Wigmore goes on to discuss:

Opinions on the very issue before the jury.

And comes to a like conclusion in respect of that topic.

Smith 20 9/8/90

•DAWSON J: 

What could the psychiatrist or psychologist tell the court that the jury could not conclude, on its

own, without his assistance?

MR GRACE: 

He could tell the court the stimuli that are

subject to perception, in a normal human being;
the effect of characteristics of the witness, that
is the eyewitness, upon the perception and

identification process, and that would involve some

aspects of the witness's sex, age, occupation and
so on; the effect of exposure of the witness to
post-event information and the effect of the

displacement effect.

DAWSON J: These are all things the jury knows.

MR GRACE:  With respect, Your Honour, it is my submission

they do not know those matters.

DAWSON J: Take them one by one.

MR GRACE:	The stimuli which are subject to perception.
DAWSON J:	In other words, what opportunity they have to

observe.

MR GRACE:  Yes, but the observation is made of a given event

or circumstance and the - - -

DAWSON J:  It may have been dark, it may have been light, it

may have been rain, all sorts of things; the man's

face may have been hidden and so on.

MR GRACE:  Perhaps it may be easier to do it by way of

example when related to the facts of this case.	In
this case there were seven eyewitnesses. One was
excluded on a voir dire due to his unreliability.
Of the six remaining three purported to identify the applicant. Added to that was the deceased who

knew the applicant intimately and did not offer any
form of recognition of the _applicant in front of

the seven eyewitnesses.

One of the eyewitnesses had been to school

with the applicant, knew him very well and yet

could not identify him from police photographs as

being the gunman. He said he recognized the

applicant in the police photographs but could not

recognize him as the gunman. Two others could not

select the applicant from police photographs.

The fourth eyewitness, a man by the name of

Purcell, was told by the police at the time of

looking at the folder of photographs in which he

selected the applicant that he was likely to see

the suspect of the crime in the folder. He was

expecting to see a suspect of the crime in the

Smith 21 9/8/90

folder. That was his understanding;	he was not
told that, it was his understanding,	however. That
witness, Purcell, said that the man	in the
photograph looked like the gunman.	He could not
put it higher than that.

The two crucial eyewitnesses were a Mr and

Mrs Mitchell. They knew the applicant,

Mrs Mitchell having cut his hair and Mr Mitchell having sold a bed to him sometime prior to the

incident. Mrs Mitchell when spoken to by the

police immediately after the incident could not

tell the police who the gunman was. The

description she gave did not accord with the later

description. Mr Mitchell also could not tell the

police who the gunman was and his description did

not accord with a later description of his,

particularly in relation to clothes that the gunman

was wearing.

Mr Mitchell gave evidence that subsequent to

the police speaking to he and his wife, he realized
in his mind that it was the applicant and he told

his wife, "I think that was the applicant". "I

think that was Mark", I think were the words he

used. Mrs Mitchell had told· the police that the

gunman looked like a man she saw on TV as an actor.

She later firmed up in her observations by saying

that it was the applicant that she saw and she

admitted that she told the police it was the

applicant after her husband had told her that it

was in fact the applicant.

DAWSON J:	But she said she had not been influenced by him.
MR GRACE:	She said she had not been influenced. That was

the state of the identification evidence.

DEANE J: If I might say so, Mr Grace, you have just with

admirable clarity demonstrated how the reliability

of identification evidence can be challenged

without any need of expert evidence.

MR GRACE:  As I attempted to outline to the Court yesterday,

in terms of the evolution of the caution - - -

DEANE J: But if you added to what you have just said, "A

warning of the type that is required in Victoria",

I would have thought that the problems about identification evidence would have been brought

home to the jury far more effectively than by any

expert going in and purporting to talk about the

ordinary man.

MR GRACE:  It is in the same category, in my submission,

ultimately of the defence being prevented from

calling a relevant witness to put forward matters

Smith 22 9/8/90

~hat are material to the defence. That is what it

ultimately falls down to. It may be said, in a

given case, that a caution is sufficient. It may

be said, in a given case, that one witness called

on behalf of the defence to support an alibi is

sufficient when you have got ten available,

depending on the strength of that particular
witness. Adding another witness to the defence
case should be in the prerogative of the defence

and if that witness satisfies the criteria for

admissibility of his evidence in terms of relevance

and in terms of expertise then, in my respectful

submission, the defence should not be precluded

from calling that person.

DAWSON J: That is just what it is not. Expert evidence is

almost always relevant in the sense that it

pertains to the matter in question but it is

excluded for a different reason because it is not

helpful and that is what has been put to you. This

evidence may be interesting but it is simply not

helpful to the jury in the performance of their

task and that, is of course, what Wigmore says.

MR GRACE:	Yes.
McHUGH J: Particularly in the context of this case.	This

case has really got nothing to do about how people

make mistaken identifications. On what you have

just told us, your case is dependent upon

suggestion.

MR GRACE: Well, that is one aspect of it, Your Honour.

TOOHEY J:  The other difficulty that, seems to me, faces

you, Mr Grace, is that the evidence is directed at

the ordinary person and not at the witnesses

themselves. Most - and I am not suggesting all -

but most of the cases where expert evidence of a

sort that might come anywhere near this is given,

it is given in relation to a particular individual.

For instance, in Murphy, that individual's capacity

to comprehend questions asked, the vocabulary of

the individual. But this evidence is not directed

at the witnesses but at "the ordinary person".

MR GRACE:  Yes, but it is my submission that the "ordinary

person" still has problems in the processes of

identification.

McHUGH J:  But we are not dealing with an ordinary person,

we are dealing with a number of people, actual

persons, not "ordinary persons", whatever that term

might mean.

MR GRACE:  Yes.

Smith 23 9/8/90

McHUGH J:	I mean, I could understand the case if you call this witness who said, "I saw these witnesses, I
heard them give their evidence, I heard the reasons
that they gave in cross-examination for their
identification, I say as an expert there are these
risks about particular pieces of evidence". But
that is not the way you are putting your case.
MR GRACE:- No, Your Honour.	The fact that a normal human

being may have, and one would expect all of us

have, similar thought processes, has been the

subject of expert psychological research and there
are a number of authorities and general articles

with Your Honour's associates ,I believe, which have been referred to in the outline or list of authorities, which clearly set out the areas and

parameters of concern to psychologists about

witnesses, problems in recall, recognition,

perceptions, et cetera, and it is perhaps an area

that is little known to the legal system, but one

in which, in my respectful submission, the legal

system could learn a lot from and the American

cases have analysed all the arguments that

Your Honours have put to me so far this morning.

and perhaps if I could take Your Honours to a

number of American decisions on this area - - -

DEANE J: Well, why do you not take us to the best of them,

from your point of view?

MR GRACE:	Yes.
DEANE J:	By that I am not limiting you to one, but I am

just suggesting you do not take us to them all if

they reach a climax.

MR GRACE:  Yes. There are a great number of decisions, I

might add, that go both ways, but since 1985 there

has been a distinct trend in the United States to

allow evidence of this nature to be admitted. The

case of The United States v Downing, (1985) 753 F

2d 1224, is a case in point. There the defendant

was convicted of: 

mail fraud, wire fraud, and interstate

transportation of stolen property.

The court held that:

Fed.R.Evid. 702 pertaining to expert testimony permits a defendant to adduce, from an expert

in the field of human perception and memory,

testimony concerning the reliability of

eyewitness identifications -

and overturned a district court's decision on the

point. Page 1229, after setting out the exact

Smith 24 9/8/90

rules, the court said this, and this extract that I

wish to read is in the second column on page 1229:

The rule invests trial courts with broad

discretion to admit expert testimony over the

objection that it would improperly invade the

province of the jury. Under Rule 702, "an

expert can be employed if his testimony will

be helpful to the trier of fact in

understanding evidence that is simply

difficult, (though) not beyond ordinary

understanding."

And then certain references are cited, and then the

next paragraph commences with this:

Notwithstanding the fact that the Rule

702 standard usually favours

admissibility ..... several courts of appeals

have upheld the exclusion of expert testimony

on eyewitness perception and memory because

the testimony would involve questions that

"can be adequately addressed in cross

examination and that the jury can adequately

weigh ... through common-sense evaluation."

And, over the page on 1230, the first substantive

paragraph:

We have serious doubts about whether the

conclusion reached by these courts is
consistent with the liberal standard of

admissibility mandated by Rule 702. Instead,

we find persuasive more recent cases in which
courts have found that, under certain
circumstances, this type of expert testimony

can satisfy the helpfulness test of Rule 702.

For example, in State v Chapple, 135 Ariz.

281 •.•.. the Supreme Court of Arizona set aside

a jury's guilty verdict and ordered a new

trial on the ground that the trial court had

erroneously excluded an expert on eyewitness

addressing the question whether the expert's	identification offered by the defendant. In
testimony would have been "helpful" to the jury in reaching an informed decision, the court noted several specific factual
"variables" that were present in that case which, the defendant's expert was prepared to
testify, reduced the eyewitnesses' ability to
perceive and remember accurately.

The proffer stated that the expert would

testify concerning: (1) the "forgetting

curve," i.e., the fact that memory does not

diminish at a uniform rate; (2) the fact that,

contrary to common understanding, stress

Smith 25 9/8/90

causes inaccuracy of perception and distorts

one's subsequent recall; (3) the "assimilation

factor," which indicates that witnesses

frequently incorporate into their

identifications inaccurate information

gathered after the event and confused with the

event; (4) the "feedback factor," which

indicates that where identification witnesses

discuss the case with each other they can

unconsciously reinforce their individual

identifications; and (5) the fact that studies

demonstrate the absence of a relationship

between the confidence a witness has in his or

her identification and the actual accuracy of

that identification. Each of these

"variables" goes beyond what an average juror

might know as a matter of common knowledge,

and indeed some of them directly contradict

"common sense." For this reason, the Arizona

Supreme Court concluded that the expert's

testimony would have assisted the jury in

reaching a correct decision.

DAWSON J: Well, you put that forward as correct?

MR GRACE:	Yes, in my respectful submission.
DAWSON J:	I would have thought every one of those was

something that the jury would know as a matter of

common - - -

McHUGH J:  I was just going to say the same thing. At page 1230 they set out five factors. Now, I would

have thought the average juror would have been well

aware of those five factors: that memory does not

diminish at a uniform rate; the fact that stress

causes inaccuracy of perception, distorts recall,

simulation factor, feedback factor, and absence of

a relationship between confidence of a witness and

the actual accuracy of that identification.

MR GRACE:  Well, if one refers to the address to the jury of the learned trial judge in this case, one will see

that not all those factors were addressed. I

concede that no objection was taken, nor was the
matter argued before the Court of Criminal Appeal.

But no objection was taken because the caution was

in accordance with the rules stated in Burchielli,

and if I could -

DEANE J:  But if you have that caution after defence counsel

has addressed stressing the factors that he or she

wants to rely on, that general caution is a very

powerful assistance to those seeking to question

identification evidence on particular grounds

relating to particular witnesses, and so on.

Smith	26	9/8/90
MR GRACE:	Well, it may or may not be, Your Honour.	One

caution; and secondly, if they do understand it	does not know whether the jury understands the
they act upon it. One does not know the answer to
that question. They act upon evidence, that is clear, but they do not necessarily have to abide by
judges' directions to them.

DAWSON J:	We have to assume in this Court they do.
McHUGH J:	We have to assume that.

MR GRACE: Well, we would like to assume that, and hopefully

the jury does act upon cautions given in these
circumstances. But the use of the evidence of the

expert would further amplify the caution.

McHUGH J: Well, according to the tradition at the New South

Wales Bar the jury take more notice of the judge than they do of counsel, and for that matter, any

evidence.

MR GRACE:  Yes, well I cannot comment on that, Your Honour.

If I could refer the Court to United States v

Sebetich, which is another decision of the United

States Court of Appeals third circuit. It is

referred to at (1985) 776 F 2d 412, and this is an
example of a case where the decision in Downing was

or ninth line down from the top of the page

applied and at page 418, the first column, the eighth

of 419, left column:

In Downing, we held that Fed. R. Evid. 702 may

perm.it a defendant to adduce testimony from an

expert in the field of human perception and ·

memory concerning the reliability of

eyewitness identifications. We held further

that the admission of of this kind of expert testimony is not automatic, but must survive

preliminary scrutiny by the district court.

The test fashioned in Downing centers on two

factors:	(1) the reliability of the
scientific principles upon which the expert

testimony rests and hence the potential of the

testimony to aid the jury in reaching an
accurate resolution of the disputed issue;
and (2) the likelihood that introduction of
the testimony may overwhelm or mislead the

jury. In addition, admission depends upon the

"fit," i.e., a specific proffer that the

testimony will focus on particular

characteristics of the eyewitness
identification at issue and discuss how those

characteristics call into question the

reliability of the identification. Finally,

Smith 27 9/8/90

we held that the district court retains

discretionary authority - - -

McHUGH J:  I will just stop you there, this evidence was not

going to focus on the particular characteristics of

the eyewitness identification, was it?

MR GRACE:  Yes, it was, it was going to be put in the

abstract to the expert and he was to give his

opinion on that abstract evidence.

TOOHEY J:  What do you mean by abstract evidence, Mr Grace?

MR GRACE: Well, he was not to give this evidence after

hearing the evidence of the eyewitnesses. He was

to be proffered a fact situation and asked to

explain to the jury the processes that would be

involved in that eyewitness giving that sort of

identification evidence.

TOOHEY J:  Do you mean a hypothetical case was to be

presented to him which, in fact, was the

anticipated evidence of a particular witness?

MR GRACE: Well, was the actual evidence of the witness.

DEANE J:  The processes that would be involved or the

processes that might be involved?

MR GRACE: The processes that would be involved.

DEANE J: What do you mean by "processes" there?

MR GRACE:  The thought processes in the mind that would

allow the eyewitness to reach the conclusion.

DEANE J: It will allow the ordinary eyewitness, not this

witness?

MR GRACE:  Not this particular witness, the ordinary

eyewitness to reach the conclusion that he or she

has.

DEANE J: Would he have said, "Well, some people who know

people can identify them without any problems at

all depending on how well they know them and how

their observation is and so on. Other people who

know people and are not observant and are assertive

will say they identified them when really I, as a

psychologist, would be able to say they don't

identify them at all."?

MR GRACE: No, he would not give that evidence.

DEANE J: Well then, what exactly would he say?

Smith 28 9/8/90

.MR GRACE:  He would say that the circumstances of the

identification, the crisis of the situation, the

trauma that the occasion had - - -

DEANE J: Take the lady hairdresser's case.

MR GRACE:  Yes. She could not identify the gunman as the

applicant when first spoken to by the police. Now,

there is a train of thought that says that persons

in crises situations will be more inclined to make

a positive identification than otherwise

because -

McHUGH J: It must depend on the individual, though, must it

not?

MR GRACE: Well, it does depend on the individual to a

certain extent, Your Honour. However, there are
certain common denominators which the research has

identified as being involved in the thought

processes of identification of a normal human being

and the studies that have been conducted clearly

identify the processes and what persons may feel as
germane to the characteristics that they are

remembering will have a certain effect in their

mind when it comes to recognition and to narrating

that recognition at a later time to a court.

TOOHEY J:  Would Mr Thomson's evidence have focused on the

particular situation of particular witnesses?

MR GRACE:	Yes.
TOOHEY J:	Of the particular witnesses in this case?
MR GRACE:	Yes, it would, Your Honour.

McHUGH J: But without knowing what sort of personalities

they are, whether they are calm, cool and

collected; highly intelligent?

MR GRACE: That, according to the psychological research,

the intelligence factor indicates a situation where

a person is more prone to misidentification than

the other way around. That is one aspect of

Your Honour's question, but it would allow for

those possibilities as a variable.

DEANE J: Well it may or may not. I mean, the intelligence

factor may be relevant to whether the particular

witness knows of the dangers of identification. If

you get an extremely intelligent person he is

probably going to be far more loathe to say he

identifies somebody.

MR GRACE:  He may be loathe to say it - - -

Smith 29 9/8/90

DEANE J:	And he may want to.
MR GRACE:	- - - but he may honestly believe that he has

correctly identified the person.

DEANE J: Well, that depends on whether he knows the dangers

of identification evidence or not.

MR GRACE:· With respect, not; it is a different question,

Your Honour.

DEANE J: He may be aware of the danger of wrongly believing

in which case he will not believe.

MR GRACE: That is a possibility, certainly, but he may

believe he has made a positive identification of a

culprit. He may realize - he might be a lawyer, for instance, or a psychologist - he may realize

the problems of eyewitness identification and he

may come to the conclusion, "Look, I can't be

positive about this. It looks like the person but

I can't be positive", whereas, perhaps a less

intelligent person might say, "I'm positive it is

the person"; whereas he might be honest but

mistaken.

DEANE J:  I think you have made the point clearly, Mr Grace.

MR GRACE: There are some helpful journal articles in the

area, Your Honours, particularly the article by

Gorman at (1987) 63 Chicago-Kent Law Review 137; a

journal article by Loftus and Schneider at

(1987) 56, 1 University of Missouri Kansas City Law

Review 1; an article by Skeen in The South African

Law Journal which is referred to on the list of

authorities and an article by Clifford in

(1979) Criminal Law Review at page 153.

The other US authorities that are referred to

in the outline of submissions all follow on the
same line of reasoning and, indeed, my researches

indicate that the line of reasoning that was first

adopted in Downing and supported in Sebetich has

now found favour in a growing number of

jurisdictions within the United States at both

State and Federal level. The matter, as far as I

ascertain from my researches, has not come before

the United States Supreme Court nor has the matter

come before, as far as my researches indicate, any

other appellate court in the common law world.

In the outline of submissions I set out the

criteria upon which such evidence should be

admissible and I invite the Court, of course, to

take those matters into account and also the

authorities that are referred to therein. If I

could turn now, Your Honours, to the second aspect

Smith 30 9/8/90

of this application and that is the

responsibilities of trial counsel.

A cursory look at the judgment of the Court of

Criminal Appeal will clearly indicate to the Court

the existence of evidence that was available to

trial counsel prior to the trial which, in my

submission, should have been raised before the

jury. That evidence - - -

DAWSON J: Just before you go on with it, it may seem to be

taking you off at a tangent but you did mention earlier that the deceased was well known to the applicant and vice versa and there was evidence of

that, was there?

MR GRACE:	Yes.
DAWSON J:	Not just in terms of admissions from the

applicant but otherwise?

MR GRACE:  No, there was clear evidence; they used to live

together.

DAWSON J: And there was evidence of that?

MR GRACE:  Yes. There is evidence from the deceased's

brother to that effect and also from other

witnesses.

DAWSON J: And was there clear evidence of antagonism

between them?

MR GRACE:  Yes. The Crown case was based, in part, on

motive and there was an allegation that the

deceased had fired shots into the applicant's home

a few days prior to the murder and it was suggested

strongly by the Crown at the trial that the motive

for the applicant in murdering the deceased was the

fact that the deceased had shot up the applicant's

home, to use the vernacular.

DAWSON J: And yet, as you would put it, the evidence of the

actual incident was a male person came to the

school, said something about someone tampering with
the deceased's car and without recognition and

without any sign of antagonism or reaction the

deceased went with him towards the car?

MR GRACE: Yes, that was uncontradicted evidence at the

trial and it was one of the strong points that the

defence relied upon to attempt to prove that the

identification was wrong.

DAWSON J: It certainly assists the defence case, does it

not?

Smith 31 9/8/90

MR GRACE:  Yes, and this directly leads into this next point

that I have just raised with Your Honours and that

is this, that there was another person who admitted

to the killing. He was a very good friend of the

applicant and there was material available both to

the police and to the applicant's counsel and, in fact, the applicant had caused the material to be made available to the police by causing two

witnesses to go to the police prior to the trial

and tell them that the man Keene had confessed to

each of these persons the fact that he had murdered

the deceased.

The murder occurred on 31 January 1986. The

applicant was arrested on 4 February 1986 and was

held in custody for a quite considerable period of

time until granted bail. Whilst he was in custody

in early June 1986 the man Koene committed suicide

and he did that by carbon monoxide poisoning

through a hose from his exhaust pipe into his car.

He left no suicide note. However, some witnesses

came forward subsequent to that suicide to say that

the deceased has confessed to them that he had

committed the murder.

DEANE J:  Now, can you show us the form in which that

evidence was put before the Court of Criminal

Appeal?

MR GRACE:  Yes. It was put before the Court of Criminal

Appeal in affidavit form.

DEANE J:  Well, let me put it to you this way: I may have

missed something, or I may have missed a lot, but

all I have seen are affidavits which contain a

blank statement saying that "Koene had admitted",
which, of course, are quite uninformative about the

manner and would not be admissible, even if

evidence was admissible. Is there any evidence of

what Keene said?

MR GRACE:  There is no further evidence than what is

contained in the affidavit material.

DEANE J:  In other words, there is nothing beyond

conclusions of two witness that "Keene had
admitted"?

MR GRACE:	Yes, except the -
McHUGH J:	Well, you are not doing yourself justice, are

you? Hedgecock's later affidavit at pages 674

and 675, he gave some detail, did he not?

MR GRACE:  Yes. I am indebted to Your Honour.

MCHUGH J: Paragraph 4.

Smith	32	9/8/90
MR GRACE:	Yes.	If I could read that to the Court perhaps:

The occasion that Koene told me he had killed

Ansett -

I think the word should be "was" -

when we were at a house in Greensborough. I

had suggested to Koene that he appeared to be

very down of late. I asked him what the

problem was and he said something about Lynn

Smith and then said "It wasn't fucking Mark

that killed him it was me". I believed him

one hundred per cent. I knew that Koene had

been known to big note himself but this time I

felt it was different.	I suggested to him
that he was joking but he said he was not.	I
asked him what happened.	He told me that he

had gone down to the school, walked inside and

told Ansett that someone was fiddling around

with his car. Ansett had then walked out,

making some comment about what he would do to

whoever was fiddling with his car.	He then
shot him.

DEANE J:  That answers that query. The next thing I

wanted to ask you is assuming that this material

does raise a question as to why the case was

conducted the way it was, particularly why the

accused stood mute instead of making a statement,

to investigate that question one would naturally

need to hear from counsel who conducted the case.

Now, that evidence, of course, is available to the

defence. One would presume it would not be

available to the Crown, except on the basis of

simply calling defence counsel. Is that so?

MR GRACE: Well, under the procedure of the Victorian Crimes

Act, if I could read the applicable section -

section 574 of the Victorian Crimes Act refers to

certain powers of the Full ~ourt upon hearing of a

criminal appeal.	The affidavit material was
supplied to the Crown well prior to the hearing of

the appeal. The Crown had an opportunity - - -

DEANE J:  But your client is asking the Court to go into

the extraordinary process of examining counsel's

conduct and counsel's reasons for conduct in a

situation where all the evidence is available to

your client. Why should not the obligation be on

your client to put the relevant evidence before the

Court?

MR GRACE:  The allegations contained within the grounds of

appeal to the Full Court, indicated clear error on

the part of trial counsel.

Smith 33 9/8/90

McHUGH J: Why? For all we know, supposing your client told

counsel that he was, in fact, guilty and that was

why counsel did not call him?

MR GRACE: Well, the affidavit material is to the contrary,

Your Honour, from the applicant that was filed in

the Full Court.

McHUGH J: Well, it is not necessarily. I mean one theory

of the case is that this man Koene may have been

responsible but that there were two people

involved. The car was driven off after the gunman

got in the left-hand side, there would seem to be

some suggestion that there was some other person

there, having regard to what is said about Koene,

it may well have been that he was the gunman but

your client was involved with him.

MR GRACE:  That would necessarily imply that the applicant,

if he was the driver and not the gunman, was party

to a plan to murder Ansett.

McHUGH J: That is right.

MR GRACE:  And it is just speculative, totally.

McHUGH J: Well, it may be, but what I am saying is, when

you start to criticize - it is very difficult for

any court to criticize the conduct of counsel,

particularly about calling evidence, because only

counsel usually knows what the strengths and weaknesses of cases are and courts take upon

themselves a huge responsibility when they second

guess the conduct by counsel of a trial of a case.

MR GRACE:	Some cognizance of the matters that were put in the affidavit material, tendered on behalf of the applicant before the Court of Criminal Appeal,
could be gained, in my respectful submission, from the fact that, although they had the opportunity to do so, the Crown did not call any of the deponents of that affidavit material to the court for the
purposes of cross-examination as to the facts
contained within their affidavits as they were
entitled to do;  nor did they make application to
the court - - -

DEANE J: But why were they not entitled to say, "This

application is hopeless if the applicant is not

even prepared to disclose counsel's side of what

occurred."?

MR GRACE:  Well, counsel was not called upon by the

Crown - - -

Smith 34 9/8/90

DEANE J: But why should the Crown have called counsel when

your client was entitled to find out what counsel

would say? The Crown had no such entitlement and

your client was asking the court to indulge in the extraordinary exercise of quashing a conviction on the basis· of conduct of counsel involving factual

matters which one could not possibly hope to have a

full picture without the evidence of your client's

counsel?

MR GRACE:	Yes. Well, trial counsel in fact, attempted to get his side of the story before the Full Court,
not in affidavit form but in letter form. The
letter was tendered but not received.

DEANE J: Tendered by whom? Objected to by whom?

MR GRACE:	The court, itself, took up the objection that the material was not in a proper form for it to be
received.  I am indebted to my learned friend who
indicates to me that both counsel made their own arrangements to put their side of the story to the
Full Court and they tendered to the court material
in letter form which was tendered directly through
the court processes, probably through the Registrar
of Criminal Appeals.  The court announced the fact
that it had received that material but could not
act upon it because it was not in the proper form.
Even at that stage the Crown who were privy to the contents of - I misunderstood the situation, it was
my understanding the Crown were privy to the
contents of that letter, but in any event the Crown, at that stage, did not seek to put the
material contained in the letters, in affidavit, to
answer the allegations that were contained in the
affidavits.

DEANE J: But why should not the Crown simply say, "This is

an extraordinary application. The material makes

it plain that the applicant has seen fit to put
selective items of the available evidence before

the court". In that situation, the court simply

should not embark upon this enterprise.

MR GRACE:  I think it was accepted by the parties that the

trial counsel had acted upon a certain appreciation

of the law as to the admissibility of this material

in relation to Koene and that appreciation was that

it was inadmissible. With that acceptance there

was no real need to inquire into the actual body of

facts, perhaps, contained within the affidavit

material other than in a broad sense and if one

puts to one side the allegations of failing to

abide by instructions in relation to the standing

mute and the alibi - put that to one side and then

just look at the Koene factor itself - it appears

that the affidavit material certainly refers to it

Smith 35 9/8/90

but it was referred to in the Full Court that the
material was admissible and that trial counsel had
acted upon a fallacious, it was submitted,

appreciation of the decision in Van Beelen.

DAWSON J:  Does that appear somewhere in the evidence that

counsel regarded the evidence as inadmissible?

MR GRACE:  Yes, that appears in affidavit material of

Sue Anne McGregor. There are three affidavits of

Miss McGregor. The first affidavit, which is dated

7 August 1987 and is at page 627, sets out some of

the history of the instructions and also the fact

of conferring with trial counsel and the witnesses

as to Koene's admissions. The second affidavit,

dated 28 September 1987 at page 632, is not germane

to this application. The third affidavit, which is

dated 30 October 1988 -

DAWSON J: It is page 648 that you are looking for.

MR GRACE:  Yes, page 648 is, unfortunately, in the wrong

place in the application book; it has just been

inserted in the wrong place but at page 648 which

is immediately prior to page 644 in the application

book - I apologize for that oversight,

Your Honours - Miss McGregor deposes to the fact

that:

Between July and December 1986 I

conferred a number of times with

Mr Van De Weil concerning the matter and in

particular in relation to the information

concerning Koene. On many of these occasions

Mr Van de Weil indicated to me his firm belief

that such information could not be tendered at

the trial of the applicant due to the ruling

in the case of In Re Van Beelen (reported

9 SASR 163). I expressed the view that

Van Beelen was only a decision of the South

Australian Full Court and that we should

persist with the material concerning Koene in

the defence of the applicant.

And then later on at paragraph 16:

On 30th January, 1987 I was present at a

conference between Mr Van de Weil and the

applicant at which the applicant was pressing

Mr Van de Weil regarding the Keene material.

In the course of that conference

Mr Van de Weil described in detail to the

applicant the facts in Van Beelen's case and

advised that as a result of the ruling in that

case it was his opinion that no evidence
regarding Koene could be called at the trial

of the applicant. Notwithstanding, the

Smith 36 9/8/90

applicant remained adamant that information regarding Keene should be placed before the jury upon the hearing of his trial.

Then, paragraph 18:

I was subsequently advised that I would be called as a witness in the trial for the

defence. I was duly served with a subpoena.

I was informed that an order had been made

excluding witnesses from the court until
called upon to give their evidence. During

the trial I was passing by the court room and

beckoned Mr Burrows, a solicitor instructing

Mr Van de Weil and Miss Lieder, to the door.

I enquired how the trial was proceeding with a

view to ascertaining when I might be called.

During the course of this conversation I asked

what was happening in relation to the Keene

material. Mr Burrows said words to the effect

"troubles with Van Beelen".

That material, of course, was before the Full

Court. It was adumbrated, of course, in argument

and Van Beelen's case is referred to in the

judgment of the Court of Criminal Appeal. A

similar situation arose when the Full Court

considered a petition of mercy in the case of

Knowles, (1984) VR 751.

In that case the court was considering a

petition for mercy by Knowles in relation to the

failure of counsel to call certain evidence at the

trial which was relevant to the propensity of the

deceased ·to violence. The point was that counsel's

view, at the trial and at the Court of Appeal
subsequently, was that the evidence was

inadmissible and the Full Court held that the

evidence was, in fact, admissible.

Counsel had made an error in his analysis of the law and should have attempted to elicit the

evidence at the applicant's trial.

TOOHEY J:  How did that particular evidence get before the

Full Court from Knowles?

MR GRACE:	By affidavit material.
TOOHEY J:	By affidavit of counsel?
MR GRACE:	Yes, there were affidavits by counsel also.

TOOHEY J: Proposing as to his belief as to the state of the

law at the relevant time?

Smith 37 9/8/90

MR GRACE:  Yes. At page 760 - perhaps it commences at

page 759 at line 38, the particulars of errors are

set out and over the page on page 760, at

paragraph (g}, the error complained of there is:

Counsel for the petitioner failed to inform

themselves adequately as to whether the evidence which could have been given by

Stanley Swaine was admissible evidence.

(h) Counsel for the petitioner wrongly

concluded that the evidence which could have

been given by Stanley Swaine was inadmissible,

which view they would not have formed had they

adequately informed themselves as to the law,

and as a consequence of that error failed to

call a witness, namely Stanley Swaine, whose

evidence was of critical importance to the

petitioner's defence.

The court, on page 761, considered the three

categories of cases in which miscarriages of

justice could occur as set out by His Honour

the Chief Justice in Ratten in this Court but what

is clear from the decision in Ratten is that a

conscious decision by trial counsel in relation to

the eliciting or non-eliciting of evidence is not a
bar to a finding by an appeal court of a

miscarriage of justice.

In the event, the Full Court accepted the

petition and ordered a new trial and they

considered the law as it stood at the time in

respect of the evidence that was sought to be

elicited. The law as it stood was a spate of

single judge decisions of the Victorian Supreme

Court which later were overruled by the Full Court

in a case called Gibb v McKenzie, (1983) 2 VR 155.

The evidence before the Full Court in Knowles

made it clear that counsel-~t the trial were firmly

of the view that the evidence was inadmissible.

The cases I relied upon were discussed by the Full
Court.	The ruling that was complained of was that

the ruling was that in homicide cases in which

either of the defences of self defence or of
accident was in issue, evidence of the violent

propensity of the deceased, of which the accused

had no previous knowledge, was not admissible and

the court held that that evidence was, in fact,

admissible.

The threshold question, of course, is whether

the material in relation to Koene is admissible.

If it was not admissible then the grounds

complained of, in terms of trial counsel's

decisions, could not be substantiated at all, and

Smith 38 9/8/90

it would be my respectful submission that this

Court ought to consider the admissibility of the

car material as a precursor to determining whether
the decision by trial counsel was proper in the

circumstances.

DAWSON J:  What did they do? I find it hard - page 703 you

have the passage from	the judgment in the Full
Court, and they quote	a passage from Van Beelen and
then say:

Applying those considerations and

principles to the present case, I have come to

the conclusion that the decisions made by

counsel and the applicant at the trial cannot

be said to have vitiated the trial.

What does that all mean?

MR GRACE:  I could not follow it, I must confess,

Your Honour.

GAUDRON J: But is it not explained in the next paragraph -

what was thought? The:

evidence had no probative value because it
could not connect Koene with the scene of the

crime or the killing -

over on page 704.

MR GRACE:  Yes. Well, in my respectful submission, that is

wrong. The evidence, if admissible, could

certainly connect Keene with the killing.

TOOHEY J: When you speak of the evidence in that context,

Mr Grace, it is not clear to me, looking at

page 703, in what is referred to as the "Koene

factor", that the evidence there includes any

so-called admission made by Koene. It seems to

relate to a whole lot of considerations such as,

"similarity of appearance", opportunity to have

been at the scene, "propensity to violence" and the
like.	How did the Full Court deal with those

affidavits which contained statements that Keene

had admitted to the deponent that he killed the

deceased?

MR GRACE: At page 700 there is reference - - -

McHUGH J: The Full Court seem to have applied Van Beelen,

did they not. They set out Van Beelen and the

allegations, and then at 703, just after the quote,

they say:

Applying those considerations and

principles .••.. ! have come to the conclusion

Smith 39 9'/8/90

that the decisions made by counsel and the

applicant at the trial cannot be said to have

vitiated the trial so as to result in a

miscarriage of justice.

MR GRACE:  Yes, and - - -

DAWSON J: .It does not really deal with Van Beelen, does it?

I mean the thrust of Van Beelen was that the confession was inadmissible because it could not be tendered as truth of its contents, it was hearsay, and counsel sought to tender it saying, "Well, the

mere fact that an admission was made, true or not,

is important." and the Court said, "That cannot be

so in Van Beelen because its only relevance can be

if you give some force to what was said.", that is

to say, attach some truth to the statement that was

made", and that was the debate.

MR GRACE:  Yes, and that is certainly the problem

DAWSON J: That is not the way the Court seems to approach

it here.

MR GRACE:	No, they have not, with respect, Your Honours.
TOOHEY J:	How did the Court of Criminal Appeal in

Queensland in Condren deal with the evidence that someone else had admitted to the killing which

could have been the killing with which Condren was

charged?

MR GRACE:  As I understand it, it is an unreported decision,

Your Honour, I could not obtain a copy of it, but

from what I gleaned from the judgment in Van

Beelen, because it refers to Condren, the line of

authority existing at the time of Van Beelen and

still now, is the authority commencing in England

with the Sussex Peerage case, where it was said

that an admission against penal interest is not

admissible to prove the truth of the fact asserted

in the admission. That case held that admissions

the rationale, and I believe in Condren it adopts	against proprietary interests are admissible, and
the same rationale, is that the potentiality of
fabrication of material is greater in cases where
an admission against penal interest is discussed,
than in the case of admission against pecuniary and
proprietary interest, and that seems to be the rationale behind the policy decisions, not to admit
confessions against penal interest, which Van
Beelen discussed at length.

In fact, in Van Beelen there was, I think, a

judgment set out of the Court of Criminal Appeal in

Condren, and I will turn to that relevant page.	I
hope I have not misled Your Honours as to

Smith 40 9/8/90

discussion of Condren in Van Beelen, but there was

discussion of a Queensland decision in the case,

but I cannot locate it for the minute.	My learned
friend, I understand, is also looking.

DEANE J: The proposition is this, is it, that on a trial of

X for the crime, hearsay evidence is admissible

that someone else has admitted having committed the

crime, notwithstanding that that person is not

directly connected with the crime by other

evidence?

MR GRACE:  Yes, and the logic behind that proposition is

this: that someone in the applicant's position

should not be deprived of putting before the jury

all the available evidence that would tend to

establish a doubt in the minds of the jury as to

his guilt.

DEANE J: Well, that seems to - the judgment of the Court of

Criminal Appeal is clearly explicable on the basis

that they accepted Van Beelen for that proposition,

and then went on to say other connections of Keene

and the crime were speculative.

MR GRACE:  Yes, because there could not be a link between

those other attributes of Keene - his propensity to

violence, his similarity of appearance, and

Your Honours have been provided with a photograph

that was tended to the Court of Criminal

Appeal -

DAWSON J:  I have not seen the photograph.

DEANE J: It is in the book.

MR GRACE:  There is an actual blow-up that I have caused to

be produced for the use of this Court.

DEANE J:  We have it over there, have we?

TOOHEY J:· To what extent is the proposition regarding the

admissibility of evidence affected by the death of

the person who is said to have admitted the

killing?

MR GRACE:  If the person was alive, one would expect the

person to be called to give that evidence, or if

not called, some explanation given as to why he was

not called.

TOOHEY J: Yes, but I am putting the other situation to you:

the person has died before the trial.

MR GRACE:  The rationale behind the exclusionary rule is one

that there may be fabrication on the part of

unscrupulous defendants who could concoct a version

Smith 41 9/8/90

of events that would fit in to establish that the

deceased was in fact the culprit and not the

defendant and that is the rationale behind the

rule. The rationale is further predicated on the basis that admissions against penal interests are

far more serious than admissions against pecuniary

interests, that is a person's liberty is more

important than a person's pocket.

That seems to be the basis that the Van Beelen

decision was reached and also is the basis upon

which the line of English authorities, commencing

with the Sussex Peerage case in 1844 was based.

Perhaps it might be of interest if I could refer

the Court to the Sussex Peerage case itself.	It is
reported at (1844) 11 Cl & F 84 and it is
reproduced in the English Reports and what

Your Honours have is an extract from volume 8 of

the English Reports.

TOOHEY J: But what do you say about the deponents of

affidavits as to statements made to them by Keene

and what do you say about that material and its

admissibility and the purpose for which it is

admissible, if at all?

MR GRACE:  It is either admissible as part of the res gestae.

McHUGH J: That cannot be right. It has nothing to do with

the res gestae.

MR GRACE: With one caveat, with respect, Your Honour, and

that is that the similarities and likenesses,

movements, opportunity, closeness of the

relations.hip between Smith and Keene was such that

if the other material was admissible, that is
everything else except the admission - if the other
material was admissible as part of the res gestae,
save and except for the link to relevancy of the

material to the incident itself, then it may be

argued that a simple extension would allow the

evidence of the admissions to get in under that

head.

If that is not right, if Your Honours do not

accept that, the only possibilities it could be
receivable by a court would be either as evidence
of state of mind of Keene at the time he made the
statement and I concede that the authorities are

against me on that aspect because there is no

indication of the contemporaneity of the admissions

to other persons who made the affidavits, or as a

separate head of evidence that is capable of being

admitted before a jury on its own.

Smith 42 9/8/90

Wigmore makes some very strong comments as to

the desirability of the evidence of those

admissions, both on the basis of logic and also on

the basis of fairness and justice. If the Court

would be assisted I could refer the Court - and

there are extracts for Your Honours - as to the

commentary and statements of principles urged by

Wigmore in relation to this separate area of

admissibility of evidence.

McHUGH J: But your proposition comes to this, that on a

criminal trial the accused, or some other person,

could give evidence that somebody else had made an

out-of-court statement confessing to the crime?

MR GRACE:  If that person was unable to be obtained for the

purposes of giving evidence, or the person was

dead, or for some other cause was unable to appear.

Now, certainly it would be possible to elicit in

cross-examination of the police officers in the

applicant's case the fact that they had in their

possession statements of two witnesses, Taylor and

Coombs, to the effect that Keene had admitted to

them that he was the killer.

McHUGH J: Well, I am sorry. I would have thought that

question was totally inadmissible. How could it

possibly be relevant to ask the police whether they

had in their possession statements from somebody

else saying that another person had confessed to

the crime.

MR GRACE: Well, in the absence of being able to get the

admissions of the out-of-court statements of Koene

before the jury in any other form, the applicant

would have been left in that position.

TOOHEY J: Well, it might well have been a relevant question

in cross-examination as to the nature of their

investigations, what inquiries they pursued and

what information they had in their possession that

led them to make the inquiries that they made, and

led them not to make any inquiries that they did

not make.

MR GRACE:  It may have gone to the credit, of course, of the

police officers.

DEANE J: And the results may have been very damaging, from

your client's point of view?

MR GRACE:  They may have been.

DEANE J: Particularly in a context where, at the end of

these allegations, he stood mute?

Smith	43	9/8/90
MR GRACE:	Yes.	And that, of course, is the subject of

another complaint made by the applicant, in respect

of the trial conduct. But the threshold question

is, and I concede that if the evidence of Keene is

inadmissible, that is as to the admissions in any

shape, manner or form, then the argument, in

respect of the failure to follow client's

instructions in respect of the unsworn statement -

giving evidence or unsworn statement, and/or

calling an alibi, is much weaker. The latter

aspects merely compound the error in not calling,

or trying to elicit the evidence in respect of

Keene.

TOOHEY J:  We seem to have drifted, somewhat, from the

original proposition, or the original question put

to you by the presiding judge as to why evidence

from counsel was not made available to the Court of

Criminal Appeal?

MR GRACE: Well, I cannot give any explanation other than

what I have already proffered to the Court as to

that aspect, except to say that the primary issue

was the Keene factor in the running of the appeal.

DEANE J: But, assume for the sake of argument that counsel

if called would have given an explanation about why

he allowed your client to stand mute, which was

completely unhelpful in so far as your case was

concerned, then if your client was going to stand

mute for good reasons, one can see very good

reasons why one would not, on this sort of

evidence, have set out to erect a hearsay

allegation that somebody who was conveniently dead

had committed the crime which your client was

charged. I would have thought it could have

devastating, though I suppose your answer is it

would not be any more devastating - - -

MR GRACE:  No.

DEANE J: - - -but we do not know. Counsel did not know, at

this stage, how devastating the ultimate result was

going to be.

MR GRACE: Quite, quite. But the plain fact remains that in

the face of what would have, on any view, been a

strong Crown case, particularly if the

identification evidence is accepted, the failure by

the applicant to stand mute must have left in the

minds of the jury some question, "Why isn't this
man saying anything in his defence? Why not just
say in an unsworn statement, "I wasn't there, it

was not me, the witness is mistaken".

DEANE J: Well, one can think of one explanation.

Smith 44 9/8/90

MR GRACE:  The fact that he was guilty but the applicant has

maintained, always, that he -

McHUGH J: Not that he was guilty, but that he had told his

own counsel that he was guilty and that was why he

stood mute.

MR GRACE:. Well, there is no support on the material to that

· effect. The applicant made no admissions at any time to the police to that effect. The trial was

conducted on the basis that he was not guilty and

it was strongly fought.

DEANE J: Or, another possibility is, that he was guilty and

had a sudden rush of truthfulness at the critical

moment.

MR GRACE:  Perhaps an answer to that is why has he suddenly

changed his mind if he is genuinely feeling remorse

and guilt, and decided to appeal.

DEANE J: But what this all comes to, Mr Grace, is this: if

one wants to run a case that after a trial a

conviction should be quashed because of the alleged

inefficiency of counsel in circumstances where

counsel's evidence is available to the applicant

and is not available to the Crown in advance, you

do not present a case by putting up selective

snippets of the whole picture and say to the Court
of Criminal Appeal, "Act on the basis of the
selective evidence we've put before you and take

the irrevocable step of quashing this conviction".

I mean, that must be so, must it not?

MR GRACE:	Yes, I would concede that, Your Honour, but the overriding consideration must be as to whether
there has been a miscarriage of justice in this
case and, in my respectful submission, there has been. It has been because the evidence of Keene
was admissible as to the confession and should have
been before the jury and if the Court was to find,
as the court indicated in Knowles and Ratten, that
a deliberate decision of counsel does not
necessarily bar an appellate court from reaching a
conclusion that a miscarriage of justice has
occurred - if this Court was of a view that on
proper principles of admissibility of material of
evidence this evidence was admissible, then this concerned as to the validity of this man's
conviction - not in terms of technical validity, in
terms of moral validity.

McHUGH J: That is your problem, is it? It would be one

thing if counsel put on an affidavit and said, "The

reason I didn't call this evidence was because I

believed as a matter of law it was inadmissible".

Smith 45 9/8/90

Then, if it was admissible, you might be on firm ground but supposing counsel said, "Whether or not

it was admissible, I thought it would be a tactical

mistake to introduce the evidence concerning Koene,

particularly having regard to the accused's

connection with him". I mean, even to bring in

this evidence that your client used to train daily,

or almost daily, with this man, who had a

reputation as a gangster, a stand-over man who used

to carry a gun, in circumstances where there may

have been a second person involved in the killing,

then counsel may well have taken the view it was

suicidal. I mean, courts cannot second-guess

counsels decisions as to the way they run cases.

Counsel know far more than any court can ever know

about a case. So, the fact that you have not put

on evidence concerning the real reason for

counsel's decision seems to me to be fatal.

MR GRACE:  Yes, well I do not know if there is anything I

can say to dissuade Your Honour of that opinion but

when one looks at what the possible tactics of

counsel were in not attempting to elicit this

evidence, if it was tactics in fact - - -

McHUGH J: Well, you have a simple identification issue.

There were serious problems with the Crown's case on identity and so he went to the jury on a clear

cut issue:

How can you be convinced beyond reasonable doubt that my client was guilty of murder on

this identification evidence having regard to

the uncertainties that were obviously in these
witnesses' mind at the time?

To bring in this other evidence may well, in counsel's opinion, mean just simply to cause real

problems for him.

MR GRACE:  Well, it may not have also equally, Your Honour.

DEANE J:  Well, we are speculating. I mean, what if a

photograph was shown to every one of the

identification witnesses of Koene and every one of

them said, "No, it definitely wasn't that man"?

Bringing in Koene would have effectively raised in

the jury's mind a choice between A and B where

every identification witness said, "It wasn't B",

some said, "It was definitely A", others said, "It

might have been A". I mean, one just does not

know what might have been operating in the mind of

experienced counsel.

MR GRACE:  Yes. I accept the point, Your Honour. However,

one is left with the uncomfortable feeling that a

real possibility of this man being found not guilty

Smith 46 9/8/90

by the jury was left begging by the

non-introduction of the Koene factor which, in the

way it was argued before the Court of Criminal

Appeal, appeared to be on a basis that it was a

Van Beelen decision and not a tactical decision.

DEANE J:  Now, Mr Grace, is there anything further, because

you have been interrupted a lot, that you want to

put before us as to the correctness of Van Beelen?

Is there any authority that deals directly with

that or that you want to -

MR GRACE:  Yes. I refer the Court to Wigmore.

DEANE J: That will be the first of the extracts that we had

before, no doubt?

MR GRACE: Yes, I think so, Your Honour - Wigmore on

Evidence, Chadbourn revision, volume 5 at

paragraph 1476, and that appears on page 349, and

the section is headed Arbitrary Limitations:

It is today commonly said, and has been

expressly laid down by many judges, that the interest prejudiced by the facts stated must

be either a pecuniary or·a proprietary

interest, and not a penal interest. What

ground in authority there is for this
limitation may be found by examining the

history of the exception at large.

The exception appears to have taken its

rise chiefly at two separate rivulets of
rulings, starting independently as a matter of

practice but afterwards united as parts of a

general principle. On the one side, it early

became customary, shortly after the hearsay rule was established to receive in evidence

the account entries of a deceased person

charging himself with the receipt of money.

No distinct reason appears to have been

expressed: but the practice was well

established, and its traces as an independent

doctrine are found at a late period.

Analogous to this, and yet in origin probably

independent, were the practices, already

referred to of receiving entries in a vicar's

tithebook and endorsements of payments on

notes and bonds. On the other side, in an

independent series of rulings a practice

obtained of receiving declarations, usually

oral, in disparagement of one's proprietary

title. The use of a party's admissions was

also developing.

Then I will skip the next paragraph, but the

following paragraph says this:

Smith 47 9/8/90

This broad principle made its way slowly. There was some uncertainty about its scope:

but it was an uncertainty in the direction of

breadth: for it was sometimes put in the

broad form that any statement by a person

"having no interest to deceive" would be

admissible. This broad form never came to

prevail. But acceptance was gained, after two

decades, for the principle that all

declarations of facts against interest (by

deceased persons) were to be received. What

is to be noted, then, is that from 1800 to

about 1830 this was fully understood as the

broad scope of the principle. It was thus

stated without other qualifications: and

frequent passages show the development of the

principle to this.

But in 1844, in a case in the House of

Lords, not strongly argued and not considered

by the judges in the light of the precedents,

a backward step was taken and an arbitrary

limit put upon the rule. It was held to

exclude the statement of a fact subjecting the
declarant to a criminal liability, and to be
confined to statements of facts against either

pecuniary or proprietary interest.

Thenceforward this rule was accepted in

England, although it was plainly a novelty at the time of its inception: for in several

rulings up to that time statements of criminal

facts had been received.

The author refers to a number of those cases.

The same attitude has been taken by most American courts excluding -

and one has to go a few pages on to get the text,

up to page 358 -

confessions of a crime• or other statements of

facts against penal interest, made by third Nowadays in England perhaps the

persons.

limitation would no longer be observed.

Distinguish, of course, the question

whether the discovery, after trial, of an

alleged confession of a third person or of an

alleged recantation of a witness who now

confesses perjury, is sufficient ground for a

new trial.

Then in paragraph 1477 he says this:

Smith 48 9/8/90

It is plain enough that this limitation,

besides being a fairly modern novelty of
judicial invention, is inconsistent with the

broad language originally employed in stating

the reason and principle of the present

exception as well as with the settled

principle upon which confessions are received.

But, furthermore, it cannot be justified

on grounds of policy. The only plausible

reason of policy that has ever been advanced

for such a limitation is the possibility of

procuring fabricated testimony to such an

admission if oral. This is the ancient rusty

weapon that has always been brandished to

oppose any reform in the rules of evidence,

viz., the argument of danger of abuse. This

would be a good argument against admitting any
witnesses at all, for it is notorious that

some witnesses will lie and that it is

difficult to avoid being deceived by their

lies. The truth is that any rule which

hampers an honest man in exonerating himself

is a bad rule, even if it also hampers a

villain in falsely passing for an innocent.

The only practical consequences of this

unreasoning limitation are shocking to the

sense of justice: for in its commonest

application it requires, in a criminal trial,
the rejection of a confession, however well
authenticated, of a person deceased or insane

or fled from the jurisdiction (and therefore quite unavailable) who has avowed himself to

be.the true culprit. The absurdity and wrong

of rejecting indiscriminately all such

evidence is patent.

And there a decision of His Honour

Judge Oliver Wendell Holmes which was dissenting in

Donnelly v United States is quoted and, with the

Court's leave, I will read from that:

The confession of Joe Dick, since deceased,

that he committed the murder for which the

plaintiff in error was tried, coupled with

circumstances pointing to its truth, would

have a very strong tendency to make any one

outside of a Court of justice believe that Donnelly did not commit the crime. (I say

this, of course, on the supposition that it

should be proved that the confession really

was made, and that there was no ground for

connecting Donnelly with Dick.) The rules of

Evidence in the main are based on experience,

logic, and common sense, less hampered by

history than some parts of the substantive

Smith 49 9/8/90

law. There is no decision by this Court

against the admissibility of such a
confession; the English cases since the
separation of the two countries do not bind
us; the exception to the hearsay rule in the

case of declarations against interest is well

known; no other statement is so much against

interest as a confession of murder; it is far

more calculated to convince than dying

declarations, which would be let in to hang a

man; and when we surround the accused with so
many safeguards, some of which seem to me

excessive, I think we ought to give him the

benefit of a fact that, if proved, commonly

would have such weight. The history of the

law and the arguments against the English

doctrine are so well and fully stated by

Mr. Wigmore that there is no need to set them

at greater length.

GAUDRON J: But you have got to deal, have you not,

Mr Grace, with what was there said by

Justice Holmes "coupled with circumstance pointing

to its truth"? That is the problem you have in

this case. If counsel had, for example, tendered

the photograph and said, "Yes, that looks like the

man."- - -

DEANE J:  You mean an identification witness?

GAUDRON J: Yes, had said that to an identification witness,

"Yes, that looks like the man.", then, of course,

you would have a situation, you would have a

circumstance which could be taken as pointing to

its truth but here you have got nothing.

MR GRACE:  Except the veracity of the evidence of these

deponents, if their evidence is accepted as being

truthful.

GAUDRON J:  But the test that is posited in Donnelly is

narrower than the one you are advancing here and

even if you accepted the logic of what is written

in Wigmore it still would not define the

circumstances which rendered it admissible.

MR GRACE: Except, Your Honour, in these circumstance you had all the other factors or attributes of Keene

which were advanced to point out that he may well

have been the perpetrator of the crime. You have

got his looks, the clothing, similarity - - -

GAUDRON J:	So you have got a look-alike?
MR GRACE:	- - - in dress.

Smith 50 9/8/90

GAUDRON J: But you did not get that from any of the

witnesses?

MR GRACE:  No.

It was not put to the witnesses because counsel made a decision that the Koene factor was

not to be -

GAUDRON J:  You see, really, when you read that affidavit

material and you see that counsel was asking for

investigations to be made, you can see that what

counsel was - you can almost infer that what

counsel was doing was looking for something which

could connect Mr Koene with the event, some

circumstance. I mean, as a way of getting around

or as a way of laying a basis for the admissibility

of a statement of an alleged admission.

MR GRACE:  You see, in my respectful submission - I

understand what Your Honour is getting at - the

criteria should not be restricted in that way.

GAUDRON J:  So you say you have got to put your case beyond

that which was stated in Donnelly?

MR GRACE: Yes, and, in fact

GAUDRON J: That is, even if there are no circumstances

pointing to the truth of the statement it is

admissible?

MR GRACE:  Yes, in the interests of justice.

McHUGH J: But it is arguable that all the exceptions to the

hearsay rule are based on the inherent
trustworthiness of the evidence and that is why
they are exceptions but what is there inherently

trustworthy about some out-of-court statement made

by a person that he is responsible for a crime when

it was some other person.

MR GRACE:  It is a question of weight for the jury,

ultimately. The jury may give it no weight. They

may say, "We don't consider it, we don't believe

it.", but it is a matter that the jury should have

before it to consider as part of all the material

in the same way that - - -

McHUGH J: Supposing it is an anonymous letter written to

the prisoner by somebody or to his counsel saying that the writer of the letter was responsible for the crime?

MR GRACE:  I would concede that, in that event, that would

not be admissible because there is no particular

person you could identify as being the maker of the

statement and if he is alive and available to be

called he would not come within this exception.

Smith 51 9/8/90

McHUGH J: Supposing the letter had the most obvious detail

about the commission of the crime, such that was

arguable that only the criminal himself could have

known about it?

MR GRACE: 

If that letter was passed on by the defendant to

the police for them to investigate the matter, the
matter could properly be put to the police in

cross-examination as His Honour Mr Justice Toohey

earlier indicated would be a proper basis.

McHUGH J: Well, that assumes investigation has something to

do either with the facts of the case or with

credibility.

MR GRACE: Well, Wigmore, with respect to Your Honour,

answers that particular concern by referring to the

Dreyfus trial in France in 1899, and the situation

with Major Esterhazy, and that is referred to at

1477 in the second paragraph where Wigmore says:

It is therefore not too late to retrace our

steps, and to discard this barbarous doctrine,

which would refuse to let an innocent accused

vindicate himself even by producing to the tribunal a perfectly authenticated written

confession, made on the very gallows, by the

true culprit now beyond the reach of justice.

Those who watched (in 1899) with self-

righteous indignation the course of

proceedings in Captain Dreyfus' trial should

remember that, if that trial had occurred in

our own courts, the spectacle would have been

no less shameful if we, following our own

supposed precedents, had refused to admit what

the French court never for a moment hesitated
to admit - the authenticated confession of the

absconded Major Esterhazy, avowing himself the
guilty author of the treason there charged,

and now known beyond a doubt to have been the

real traitor.

In the United States today, hesitation to

admit such evidence is lessening. That we are

now in the process of retracing our steps and

discarding the barbarous doctrine of earlier
times is evident not only in the increasing

number of contemporary decisions but also in

current statutes and rules directed to this

end.

So, what Wigmore is saying, in effect, is in the interests of justice, evidence of this nature is

admissible as an exception, if you like, to the
hearsay rule but only in certain circumstances, and
that would be the death or the unavailability of

the declarant.

Smith 52 9/8/90

DEANE J: •· Wigmore is not saying that. What Wigmore is

saying is evidence of this kind is not admissible

but the law should be changed because the law that

excludes it is fundamentally wrong.

MR GRACE:  Yes. He is urging, perhaps, the readers of his

text, hopefully judges, to change the law in that area. And I would urge upon this Court to adopt,

with respect, what he had to say in relation to the

subject.

DEANE J:  One thing that may have been relevant to counsel's

consideration is was there any suggestion that this

evidence was handed to the police or the suggested

admissions had been made before Koene died?

MR GRACE:  The admission, of course, had to be made before

Koene died, but the material - - -

DEANE J: Well, I have put it badly, you following what I am

asking?

MR GRACE:  Yes. The material was not made available to the

police until about two months, I believe, or three

months after Koene had died.

DEANE J: Or to your client?

MR GRACE:  Or to my client, yes, although Koene - - -

McHUGH J: But your client was availed of it for a long

period of time and he gives an excuse in his

affidavit as to why he did not make use of it.	He
was aware of it for a long period of time.

MR GRACE:  Yes, he was in fear of Koene, he says in his

affidavit, as was his wife. The outline of

submissions sets out the other material I would

have relied upon, although it has been juxtaposed,

so to speak, in terms of the discussion I have had

with the Court. There is only one correction I

wish to make to the outline; in that it appears

from the outline that, at paragraph (c) on page 3,

I indicated that evidence of confessions made by

Koene to a third party is not admissible as to the

truth of the facts. I would seek to amend that and

say that it is admissible.

DEANE J: So we cross out "not"?

MR GRACE:  Yes, and Blastland is an example of a state of

mind case, and there is a caveat which is expressed

underneath the line where Blastland's case is

mentioned, which I seek to resile from, except for

the part that reads: such evidence could be led

into penalty or through the cross-examination of

police.

Smith 53 9/8/90

I do not know if the Court could be usefully assisted by me referring to any further authorities

on the topic?

DEANE J:  I do not think so unless there is something that

you want to particularly rely.

MR GRACE:  Nothing specifically, Your Honour.

McHUGH J: There is one case you have not referred to. It

is an unreported decision in the New South Wales

Court of Criminal Appeal in Williams, I do not know

that it is all that assistance to you, but that was

a case where the appellants had confessed to a

crime and, in fact, pleaded guilty and later on
another person was arrested, a man called Cooper,

in which he confessed to the crime. But it would appear from the judgment that Cooper probably put on an affidavit in that particular case, confessing

to the crime, and a new trial was ordered.

MR GRACE:  Yes, I must confess I am not aware of that

decision, Your Honour. In respect of the criteria
applied by this Court over many years for the grant

of special leave it would be my respectful

submission, that the matters raised in this

application are appropriate for the grant of

special leave and I rely upon, of course, the

provisions in section 35A of the Judiciary Act and

the criteria set out by His Honour

Mr Justice Dawson in Morris v The Queen. If the

Court pleases.

DEANE J: Thank you, Mr Grace. The Court will take a short

adjournment in order to consider what course it

will follow as to further hearing this matter.

AT 11.44 AM SHORT ADJOURNMENT

Smith 54 9/8/90

I do not know if the Court could be usefully assisted by me referring to any further authorities

on the topic?

DEANE J:  I do not think so unless there is something that

you want to particularly rely.

MR GRACE-: Nothing specifically, Your Honour.

McHUGH-J:  There is one case you have not referred to. It

is an unreported decision in the New South Wales

Court of Criminal Appeal in Willia.ms, I do not know

that it is all that assistance to you, but that was

a case where the appellants had confessed to a

crime and, in fact, pleaded guilty and later on
another person was arrested, a man called Cooper,

in which he confessed to the crime. But it would appear from the judgment that Cooper probably put on an affidavit in that particular case, confessing

to the crime, and a new trial was ordered.

MR GRACE:  Yes, I must confess I am not aware of that

decision, Your Honour. In respect of the criteria
applied by this Court over many years for the grant

of special leave it would be my respectful

submission, that the matters raised in this
application are appropriate for the grant of

special leave and I rely upon, of course, the

provisions in section 35A of the Judiciary Act and

the criteria set out by His Honour

Mr Justice Dawson in Morris v The Queen. If the

Court pleases.

DEANE J:  Thank you, Mr Grace. The Court will take a short

adjournment in order to consider what course it

will follow as to further hearing this matter.

AT 11.44 AM SHORT ADJOURNMENT

UPON RESUMING AT 12.18 PM: 

DEANE J: The Court need not trouble you, Mr Morrish.

In this application for special leave to

appeal, it is sought to raise two distinct issues

for the consideration of the Court.

The first issue relates to a ruling by the

evidence of factors which affect the process

learned trial judge that the evidence of expert

Smith 55 9/8/90

of identification, was inadmissible. It is argued

on behalf of the applicant that this Court should

decide that expert evidence is admissible as to the

processes that normal human beings use to identify

a fellow human being and the potential for those

processes to result in mistaken identification.

It has long been accepted in this country that
evidence of the kind which the applicant desired to

lead is inadmissible. It is basic to the operation of the jury system that general questions as to the credit and reliability of the evidence of

witnesses, including the reliability of

identification evidence, are, subject to special

exceptions, matters which are within the range of
human experience which must be determined by the
assessment of the jury. We think that evidence of
the kind for which the applicant contends would be

contrary to this long-established rule and was

rightly rejected.

As Justice Hampel pointed out in the Victorian

Court of Criminal Appeal in the present case, an

important safeguard and the most effective method

of bringing to the attention of jurors the inherent

dangers and problems in identification evidence is
a thorough explanation and direction by the trial

judge as to the nature of such evidence generally,

and as to the factors which may affect the

consideration of such evidence in the circumstances of the particular case. It is not argued on behalf of the applicant that the learned trial judge's

directions as to those matters was defective.

Th~ second issue which it is sought to raise

involves a submission that there was, in the
particular circumstances of the case, a miscarriage
of justice by reason of alleged errors of counsel

for the defence in the conduct of the trial. Those

alleged errors relate to a failure to lead evidence

and to cross-examine, and to the course of

permitting the applicant to stand mute.

The evidence which was placed before the Court

of Criminal Appeal in relation to those matters was

incomplete and unsatisfactory. In particular, the

applicant, presumably deliberately, refrained from

leading any evidence from counsel who appeared for

him at the trial as to the conduct of the trial. It is not suggested that the content of any such

evidence was, or could properly have been, known by

the prosecution. We are not persuaded that the

actual decision of the Court of Criminal Appeal

wa~, in the circumstances, mistaken, regardless of
whether hearsay evidence of the alleged admissions

of another person was, in the particular

circumstances of this case, admissible.

Smith 56 9/8/90

Accordingly, special leave to appeal is

refused.

AT 12.22 PM THE MATTER WAS ADJOURNED SINE DIE

Smith 57 9/8/90