Smith v The Queen

Case [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…

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Smith v The Queen [1990] HCATrans 172
Case
[1990] HCATrans 172
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CaseChat Overview and Summary

This matter concerns an application for special leave to appeal to the High Court of Australia, brought by the applicant, Smith, against the Queen. The dispute centres on the admissibility of expert evidence concerning the fallibility of eyewitness identification. The transcript indicates that the application was being heard by Deane J.

The primary legal issue before the court was whether expert psychological evidence regarding the unreliability of identification procedures should be admitted in criminal proceedings. This involved considering the extent to which such evidence, particularly from a specialist in the field of psychology and identification, could be presented to a jury. The court also had to determine the appropriate procedural mechanism for resolving such admissibility questions, with a suggestion for a voir dire to be held prior to the calling of identification witnesses.

The court was presented with arguments that advances in psychological science, specifically concerning the fallibility of human recognition and identification, warranted greater consideration by the courts. Counsel for the applicant sought to adduce evidence from Dr Don Thomson, a lecturer in psychology at Monash University, who had specialised in the dangers and problems inherent in identification. The Crown prosecutor expressed deep concern about the potential impact of such evidence on the defence and cross-examination of witnesses, advocating for a voir dire to address the admissibility of this expert testimony before the trial commenced. The court acknowledged the need to resolve preliminary questions regarding the nature of the evidence sought to be adduced and its legal basis.

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