Smith v The Queen

[1990] HCATrans 170

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

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TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 8 AUGUST 1990, AT 4.02 PM

Copyright in the High Court of Australia

MR D. GRACE:  If the Court pleases, I appear on behalf of

the applicant. (instructed by Grace and MacGregor)

MR G. MORRISH, QC: If the Court pleases, I appear with my	learned friend, MR R. PIRRIE, for the respondent.
(instructed by J.M. Buckley, Solicitor to the
Director of Public Prosecutions)

DEANE J: Yes, Mr Grace.

MR GRACE:  I hand to the Court an outline of submissions on

behalf of the applicant.

DEANE J: Yes, Mr Grace.

MR GRACE:  Thank you, Your Honour. It is proposed to deal

with the matters raised in the application in the

order as outlined in the submissions. I would first

turn to the question of expert evidence on eye-

witness identification. It is the primary

submission of the applicant that the evidence sought

to be adduced from one Doctor Thompson was both

admissible and relevant and ought to have been

received by the learned trial judge upon the voir
dire, accepted by the learned trial judge and
received before the jury. As this Court is well
aware, the problems of eye-witness identification

are well known and there is general awareness that

identification evidence is often unreliable.

The complexity of the process which lies

behind the identification process is this: that is,

a simple assertion by a witness that the accused is
a perpetrator of a criminal act and the jury has to

assess that evidence. In Craig v R, (1933) 49

CLR 429, at page 445 Their Honours Justices Evatt

and McTiernan considered the problems of
identification. At the bottom of page 445

Their Honours said this - it is the last two lines

Your Honours:

issue is the identity of the accused with the In criminal cases, where the only real

person who was performing some apparently

innocent act at a time long before the trial,

all the surrounding circumstances have to be

carefully considered, for we at once enter

what has been described as that branch of

proof "so notoriously delicate as proof of

identity." A short consideration will

demonstrate the truth of this description.

An honest witness who says "The prisoner

is the man who drove the car," whilst

appearing to affirm a simple, clear and

impressive proposition, is really asserting:

(1) that he observed the driver, (2) that the

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observation became impressed upon his mind,

(3) that he still retains the original

impression, (4) that such impression has not

been affected, altered or replaced, by

published portraits of the prisoner, and (5)

that the resemblance between the original

impression and the prisoner is sufficient to

base a judgment, not of resemblance, but of

identity.

Then the Court goes on to consider the

circumstances of that particular case. Shortly

after that decision John Barry, later to become

Judge Barry, published a review in the Australian

Law Journal and it is reported at

(1938) 11 ALR 314. The article is titled the

Problem of Human Testimony. At page 317, the last

paragraph on that page, the learned author said

this:

In the course of argument before the High

Court in the recent case of Davies and Cody v The King apropos of the reliance to be placed

upon the evidence of a witness who had

identified the prisoners as persons seen by

him under incriminating circumstances and

whose testimony had been the subject of

favourable comment by the State courts,

Mr Justice Dixon observed that the ability to

receive a mental impression of a person's

appearance, so as to be able to recall it

later when needed for the purpose of

identification, is an idiosyncrasy, and that

the ability to give evidence in the witness

box in a clear, definite and convincing manner

is also an idiosyncrasy, but that the two
idiosyncrasies are not necessarily related.

This observation brings to attention the two

important considerations which are involved in

the problem of human testimony, namely, what
is the value of the human being as an

instrument for recording facts, and what is

the value of the human being as an instrument

Later, in the same article, at page 322, the
learned author had this to say - it is in the left-

for narrating accurately the facts observed?

hand column on that page, approximately half-way

down the page:

We are accustomed, however, to think that the

object of our Courts is to conduct

investigations so as to determine accurately

the facts necessary to found judgments upon

issues submitted. If we are to maintain this

view, lawyers cannot remain indifferent to the

work that has been done by the experimental

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psychologists. The effect of their researches

upon judicial procedure of the future must be

great. The results of experiments in relation

to memory, for example, should be of great

interest to those who are daily concerned with

human testimony. Much interesting information

will be found summarized by Woodworth in Ch XI

of his work on Psychology, to which frequent

references have been made, and mention is here

made only of one sub-topic of memory.

Remembering presents itself in two aspects,

recall and recognition, recall consisting in

reproducing material that has been learned,

and recognition in knowing a previously

experienced object. Usually, more can be

recognised than recalled, and faces can be

recognised more easily than they can be

recalled, which may help to explain why a

witness may sometimes give a description which

is quite inapplicable to the person

subsequently recognised. Non-recognition is

not a mere absence of recognition, but, as

experiments have shown, is a quick, definite

action.

One of the difficulties about introducing

psychology as a science to the Courts is that

the lawyers have been applying a rough-and-

ready system of their own devising for

centuries, and each judge, in his heart of

hearts, probably fancies he knows just as much

above psychology as any of these scientific

fellows who but muddy the pellucid stream of

judicial thought with their obscure jargon.

Even at the cost of loss of mystery, however,

it would be of use to know broadly, at any

rate, the rules upon which judges act in

estimating the value of testimony, and we

therefore conclude with the hope expressed by

Dr Edward S. Robinson, Professor of Psychology

in Yale University, that the two fields of jurisprudence and psychology be allowed to

fuse where the facts with which they deal are

identical. For, as he says, "there are not

two kinds of memories, those that
psychologists study and those that work in law

courts. There are not two kinds of motivation

mechanisms, or two kinds of thought processes.

If, therefore, jurisprudence is concerned with

the natural facts of memory, or motivation, or thought processes, its subject matter at these points will actually be identical with that of

psychology.

It submitted that those words that I have

just read to the Court from Mr Barry, as he then

was, was somewhat prophetic. In the United States,

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as will become apparent later in my argument,

courts have allowed the admission into evidence of

expert psychological evidence on this topic.

In an article by a senior law reform officer

of the Law Reform Commission of the Commonwealth,

which is contained within 58 ALJ 509, the author,

Loretta Re, sets out the reasons why there are so

many mistakes in eyewitness identification.

This Court, of course, has recognized in a number of leading cases, quite exactly those

problems. For example, in Alexander v Reg, (1981)

145 CLR 395, at page 426, His Honour

Mr Justice Mason, as he then was, said this, the

second paragraph on 426:

Identification is notoriously uncertain. It

depends upon so many variables. They include

the difficulty one has in recognizing on a

subsequent occasion a person observed, perhaps

fleetingly, on a former occasion; the extent

of the opportunity for observation in a

variety of circumstances; the vagaries of

human perception and recollection; and the
tendency of the mind to-respond to

suggestions, notably the tendency to

substitute a photographic image once seen for

a hazy recollection of the person initially

observed.

And then, His Honour, goes on to discuss the use of police photographs which subject is not strictly relevant here, except in relation to - - -

TOOHEY J:  Mr Grace, are you taking us to this authority,

and perhaps to others, for the purpose of

demonstrating the need for particular directions in

regard to identification evidence, or to pave the

way for an argument that evidence, of a technical

nature, should have been admitted in regard to

identification?

MR GRACE:  The latter point, Your Honour. It is to identify

the court the evolution of judicial thought in this
area and it has only been in the last two decades

that the judicial thought has evolved to a stage

where we have in the United States, as the only

jurisdiction so far, to have accepted this sort of

evidence as being properly admissible before a

jury.

TOOHEY J: Well, now, what do you mean by"this sort of

evidence"? I was going to ask you if you could

define for us the area of expertise that you say is

involved here.

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MR GRACE:  The expertise is to identify to the jury the

stimuli which are subject to perception; the

effect of characteristics, including sex, of the

witness upon both perception and identification;
the effect of exposure of the witness to post event

information and the displacement effect. Each of

those categories, in my respectful submission,

cannot be adequately explained to a jury by a judge

or by any lawyer in his address to the jury on

behalf of the accused.

An expert could properly explain to the jury the problems encountered by persons when they are involving themselves in the process of

identification, what goes on in that person's mind

and what the potentiality is for error. Those are
the matters that an expert could give in evidence

as a matter of assistance to the jury in their

deliberations as to the identity of the culprit.

At page 435 of that same judgment in Alexander

His Honour Mr Justice Murphy indicated - that is

half-way down the page - a similar point:

Common experience demonstrates the risk of

unreliability of identification based on a

sighting of a person whom the witness did not

know previously. Miscarriages of justice

arising from mistaken identifications (even by

numerous witnesses) are part of our folklore.

The Report of the Committee of Inquiry Into

The Case of Mr Adolf Beck concluded that

"evidence as to the identity based on personal

impressions, however bona fide, is perhaps of

all classes of evidence the least to be relied

upon, and therefore, unless supported by other

facts, an unsafe insufficient basis for the

verdict of a jury".

Then he goes on to discuss a Canadian case

which indicates the -

frailties of identification evidence arising

from the psychological fact of the
unreliability of human observation and

recollection.

And over the page on page 436 His Honour refers in

the second paragraph to the displacement effect and

the use of police photographs.

In England there were a number of cases that

arose in the 1970s which gave cause for a great deal of public concern as to the possibility of

mistaken identification and as a result the

government commissioned Lord Devlin to chair a

committee of inquiry into a number of certain cases

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where there had been mistaken identification in

respect of quite serious crimes and a person had

been convicted and later it became apparent that,

in fact, the culprit was someone else.

That report by Lord Devlin which is entitled

"Report to the Secretary of State for the Home

Department of the Departmental Committee on

Evidence of Identification in Criminal Cases", not

only reported on those two cases but also reported

generally in its recommendations and summary as to

what should happen in relation to the problems of

identification evidence. The Court would have in

front of it a photocopy of some relevant extracts

including at paragraph 4.26:

three proposals for the reform of the law of

evidence -

and Lord Devlin sets these out as follows:

They are:

That a jury should be directed as a matter of

law not to convict without corroboration.

That a jury should be specially warned of the danger of convicting without corroboration.

That the identification of an accused while he

is in the dock should be inadmissible unless

by a witness who has previously identified him

under controlled conditions, such as an

identification parade.

Now, at chapter 8 where the Summary and

Recommendations are set out in full, Lord Devlin

says this, at paragraph 8.1:

We are satisfied that in cases which

depend wholly or mainly on eye-witness

identification there is a special risk of

wrong conviction. It arises because the value	of such evidence is exceptionally difficult to
assess; the witness who has sincerely
convinced himself and whose sincerity carries
conviction is not infrequently mistaken. We
have found no forensically practicable way of
detecting this sort of mistake. We recommend
that further research should be encouraged.
Research should be directed to establishing
ways in which the insights of psychology can
be brought to bear on the conduct of
identification parades and the practice of the courts. In particular, research should
proceed as rapidly as possible into the

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practicability of voice identification parades

with the use of tape recorders or any other
appropriate aids.

His Honour goes on to make certain recommendations which are a repeat of what I have already read to

the Court in paragraph 4.2 to 6.

The British Government chose not to accept the

recommendation of Lord Devlin to encode his

recommendations as a matter of law in the law of

evidence in the United Kingdom.	However, the
judiciary - - -

DEANE J:	As a matter of the law of evidence, did you say?
MR GRACE:	Yes.
DEANE J:	What would have been the law of evidence?
MR GRACE:	Perhaps that was not a very felicitous way of

expressing myself, Your Honour.

DEANE J:	The exclusion would have been more - - -
MR GRACE:	The exclusion of that evidence.
DEANE J:	Well, the exclusion of identification while in

the dock was the only law of evidence

recommendation, was it not?

MR GRACE:  No, with respect, Your Honour. If one looks at

page 150, subparagraph 4.83, the recommendations

are that - - -

DEANE J:	At page 150, did you say?
MR GRACE:	Page 150, it is at paragraph 8.4, and at the top of the page, starting with the words "we
recommend", he says this:

We recommend that the trial judge be required

by statute

a. to direct the jury that it is not safe to convict upon eye-witness evidence unless the circumstances of the identification are

exceptional or the eye-witness evidence is

supported by substantial evidence of another

sort.

DEANE J:  Yes. I think we are using the law of evidence in

different senses, Mr Grace.

MR GRACE:  Yes. In Turnbull's case the first opportunity

for the English courts to assess the impact of the Devlin report was presented and there the Court of

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Appeal introduced the concept of a caution to the jury and Turnbull's case was perhaps the first indication in the English courts of the evolution of the law in respect of the problems encountered

by identification evidence.

In the judgment of the court presented by

Lord Widgery, the Chief Justice, at page 228,

His Honour sets out in broad terms the problems

encountered by identification cases and then at

paragraph (c) says this:

First, whenever the case against an accused depends wholly or substantially on the

correctness of one or more identifications of

the accused which the defence alleges to be mistaken, the judge should warn the jury of

the special need for caution before convicting
the accused in reliance on the correctness of
the identification or identifications. In

addition he should instruct them as to the

reason for the need for such a warning and

should make some reference to the possibility

that a mistaken witness can be a convincing

one and that a number of such witnesses can

all be mistaken. Provided this is done in

clear terms the judge need not use any

particular form of words.

Secondly, the judge should direct the jury to examine closely the circumstances in

which the identification by each witness came

to be made.

And then His Honour sets out the various

points which would, of course, depend on the facts

of the particular case, but which would appear to

be obvious if one was giving a caution.

In Australia, this Court in Kelleher v Reg in

1974 had indeed made comments in relation to the

requirement, or perhaps the need for a caution in

certain circumstances.

DAWSON J: Well, we have done that long before that, in

Davies and Cody, have we not?

MR GRACE:  In Davies and Cody, Your Honour, there was an

expression of the problems of identification

evidence, but it was not expressed in terms that a

trial judge would be obliged to warn a jury of the
dangers of identification evidence. It was

suggested perhaps that it was an appropriate course

to adopt. Kelleher's case indicates for the first

time, in my submission, an indication that the

courts were prepared to categorically state that

trial judges in appropriate circumstances give the

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proper warning to a jury. And that appears

clearly from the judgment of Mr Justice Gibbs, as

he then was, and at page 550 of the volume,

(1974) CLR 534, two-thirds of the way down the

page, His Honour says this:

It is now well recognized that grave

miscarriages of justice are liable to occur in

criminal cases by reason of the fact that

witnesses, however honest and careful, may

make mistakes in identification, particularly

where the person identified was unknown to the

witness before the commission of the crime.

Experience, including recent experience, has

shown that such miscarriages can occur even

when all the precautions provided by the law

as safeguards against mistaken identification

have been fully observed. It is therefore

obviously necessary that at a trial where the

evidence implicating the accused is evidence

that he was identified by a witness or

witnesses who were not previously acquainted
with him, both judge and jury should be

constantly alert to guard against the

possibility that the evidence may be mistaken

and an innocent man convicted. I would

respectfully endorse the words of Lord Morris of Borth-y-Gest in Arthurs v Attorney-General (Northern Ireland):

"It is manifest that in cases where the vital issue is whether the identification of the accused person is certain and reliable the

judge must direct the jury with great care.

However careful is his general direction as to

the onus of proof, the judge will feel it
necessary to deal specifically with all the

matters relating to identification."

And then His Honour goes on to discuss that

case, and at the bottom of page 551 His Honours

says this:

If a warning is necessary, the duty to give it

will not be satisfactorily discharged by the
perfunctory or half-hearted repetition of a

formula, and a warning in general terms will

not alone be sufficient; the jury should be

given careful guidance as to the circumstances

of the particular case, and their attention

should be drawn to any weaknesses in the

identification evidence.

TOOHEY J:  Mr Grace, can I take you back to the question I

asked you a while ago, because I am still a bit

puzzled. Is the complaint made about the direction

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given by the trial judge in relation to identification evidence?

MR GRACE:  I am constrained in complaining about the

direction because it was not argued before the

Court of Criminal Appeal.

TOOHEY J: Well, it does not feature in the draft notice of

the appeal, does it?

MR GRACE:  No, it does not, but the importance of the point

I am seeking to make, Your Honour, is this: courts

are attuned to the problems of eyewitness

identification. The common law has evolved to the

stage where juries are now required to be warned by

a trial judge as to the dangers of identification.

There is no certainty that that warning has any

material affect upon a jury.	One does not know one
way or the other.	The introduction of expert

eyewitness testimony, in the form of a

psychologist, trained and expert in the area, is a

further safeguard, in my respectful submission,

against miscarriages of justice, and it is in a

similar vein to the reason for the caution as a

matter of logic. The reason for the caution as a

matter of logic is to provide against miscarriages

of justice in the best way that the law can see

fit.

The introduction of the expert further assists

that aim of the law and if that expert evidence can

be found to be a sufficient area of expertise and

if the person proposed to be called is held by the
trial judge to be an expert, then it is properly
the place for such an expert to give evidence in a
criminal trial where the sole or the central issue
in the trial is the question of identification or

otherwise of the accused.

TOOHEY J: Well, if you can make good that argument, do you

need to rely upon statements by the courts as to

the problems associated with the identification

evidence, and the need for judges to give warnings

to juries on that matter?

MR GRACE: Well, perhaps it is in anticipation of an

argument that I expect from my opponent in that it

will be, I would expect, argued as it is in a

number of cases that it would be the usupation of
the function of the jury to introduce expert

evidence of this nature.

TOOHEY J: That is another argument, that is why I said if

you can make good the admissibility of the evidence
on the usual grounds relating to expert testimony.

At the moment I do not see how that argument is

assisted by passages from judgments which stress

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dangers of identification evidence. the need for the judge to warn the jury about the

MR GRACE:  Yes. Well, it is merely to, as I indicated

earlier, Your Honour, to set the evolution of a law

in relation to this particular area. If I could
turn to the particular aspect that Your Honour

MI Justice Toohey indicated. In a publication by

Daniel Yarrney - it is a book published in 1979 in

the Free Press in New York - there the learned
author referred to the problems and the thought

processes that are involved in the process of

identification.

The Court has been provided with a copy of a number of relevant pages of that book and there are

11 points set out on pages 7 to 10 inclusive, of

that book, as to the processes which scientific

psychology has identified as being involved in the

human behavioural aspects of identification.

DEANE J:  Mr Grace, if that is a convenient time we will

glance at this overnight but adjourn now. The

Court will adjourn until 9.45 tomorrow morning.

AT 4.33 PM THE MATTER WAS ADJOURNED

UNTIL THURSDAY, 9 AUGUST 1990

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