Yarran v The Queen

[2002] HCATrans 217

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P8 of 2001

B e t w e e n -

MALCOLM ROBERT YARRAN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 31 MAY 2002, AT 2.18 PM

Copyright in the High Court of Australia

MR B.S. HANBURY:   May it please the Court, I appear on behalf of the applicant.  (instructed by Beau Hanbury)

MR R.E. COCK, QC:   May it please the Court, I appear for the respondent with my learned friend, MR D.T.J. SCULLY.  (instructed by the Director of Public Prosecutions for the State of Western Australia)

KIRBY J:   Yes, Mr Hanbury.

MR HANBURY:   Your Honour, I would be grateful, with respect, if the members of the Court, in the course of my submissions, would keep in mind what was said by the learned trial judge in his summing up, which appears at page 36 of the book.

KIRBY J:   Yes.

MR HANBURY:   That the Crown Prosecutor “opened” the case:

by saying that if that was all the crown had they wouldn’t be pursuing these charges –

The learned judge went on to say, in the course of the summing up, between paragraph B on page 36:

So it’s clear, isn’t it, that really both sides of the bar table agree that the evidence, either the general identification evidence, the general description evidence, and the photo board evidence, couldn’t convict Mr Yarran.

Your Honours, this was a case where on the morning of the trial in response to the indictment that was presented to the applicant, there was a plea of guilty by the applicant to a set or series of offences against two complainants and in respect of one complainant there was a trial.  As I understand the course of the proceedings, the case against the applicant was a combination of similar fact evidence that was said to have originated out of the offences concerning the two other complainants; evidence that was given by three witnesses as to photographs of the applicant wherein the witnesses said that the person in the photograph, which was the applicant, was similar to the perpetrator of the offences that had occurred.

Lastly, in the case against the applicant, as I understood the case, there was a false alibi.  There was mention in the course of the trial that there was a small issues about lies.  My understanding, subject to correction, is that that related to the false alibi by the applicant.  Your Honours, the position in relation to what is complained about is that the applicant would say that once the jury was permitted to see photographs of the applicant, there was no warning that could be given in the usual terms that would cure the prejudice by reason of the fact that the jury had before it the face of the applicant wherein the witnesses, who had been subjected to various and varied types of indignities, said that the person in the photograph, which was the applicant, was a similar person to the ‑ ‑ ‑

HAYNE J:   Just a moment, Mr Hanbury, I just do not understand the proposition you have just put; do you mind going back over it.

MR HANBURY:   Your Honour, the contention of the applicant is ‑ and this application is not dealing with the question of warnings, the application is brought on behalf of the applicant ‑ that the evidence of the witnesses relating to the photograph should not have been led as evidence at this trial.

HAYNE J:   And why should it not have been led?  What made it either inadmissible or evidence that should have been excluded?

MR HANBURY:   Your Honour, to answer that proposition, I am aware that subsequent to the filing of this application the case of Festa, which is cited in the book, went to this honourable Court and both of your Honours, with respect, sat in judgment in relation to that, and so we come to the judgment of your Honour Justice Kirby and in that case of Festa ‑ and perhaps it is causing your Honour some embarrassment, because I had not referred to it in the list of authorities for the applicant.  I apologise for that.  But, your Honour Justice Kirby ‑ ‑ ‑

KIRBY J:   It does not cause me embarrassment; I remember Festa’s Case well.

MR HANBURY:   Thank you, your Honour.  In the course of your Honour’s judgments, your Honour, with respect, specifically dealt with this issue of the exclusion question, which is – I am sorry, your Honour, I have a copy of this case from the service.  I wonder if my learned friend would be able to provide me with some assistance?  They have agreed to do that, thank you.

Your Honour, at volume 185 ALR 394, that being 2002, the judgment is set out. In the course of your Honour’s judgment, your Honour Justice Kirby, your Honour, with respect, referred to the fact that there were perhaps a number of bases upon which this type of evidence, wherein a witness is giving evidence of clarity or features, and your Honour, with respect, mentioned the classical basis upon which the evidence would not be admitted and that is that the prejudice outweighs the probative value. But, your Honour, with respect, seems to go on and say that there is also the danger that might result from that and also the unreliability associated with it. In that regard and, with respect, your Honour referred to some New South Wales cases, which are noted in the course of the judgment. Again, I apologise, because these have not been cited on behalf of the applicant, but your Honour, with respect, referred to the 1989 case of R v R, Domican (No 3) and Swaffield, which are referred to, with respect, by your Honour in the course of the judgment.

KIRBY J:   They are not New South Wales cases; Domican, and one of the other cases, came to this Court.

MR HANBURY:   I am sorry, your Honour, I meant to say that R v R appears in the New South Wales Law Report and this is set out in the course of your Honour’s judgment.

HAYNE J:   But what is the prejudice that the accused suffers if evidence is given, from whether it is the complainant or others, that a photograph amongst a photo board looks like, could be, is not out of the question that, that that photograph is the man who attacked me?  What is the prejudice that is then suffered?

MR HANBURY:   Your Honour, the prejudice that is suffered, as I understand the current state of authorities, firstly, is that perhaps no warning is required in respect of this type of evidence and I am answering your Honour’s question that your Honour Justice Kirby, with respect, did refer to the confusion that can arise as a consequence of trying to characterise this type of identification evidence into sub‑compartments and, at this particular trial, the issue of what warning should be given to the members of the jury – and it should be said that the counsel who represented the applicant was a very experienced counsel in Perth in such matters – did ask the trial judge for certain directions.  That is one prejudice that may or may not arise from this type of evidence, the question as to whether or not a warning need be given and, if so, what type of warning and, secondly, if not a warning, some sort of direction.

The other prejudice, your Honour, with respect, is that in the context of a criminal trial, and particularly in relation to the matters at hand, the jury was faced with three complainants who, it was said, had been abused in various ways and that the danger of this type of evidence is that rather than having the witness, with respect, depose to the fact of the matter, that the witness is permitted to do something much less and say, “Doing the best I could, that is the person that looks similar or, I think, might have been involved in the attack upon me”, which is a different thing from the witness saying that is the person, because if the witness deposes as a fact that that person is the person, the warning that would normally follow from that is given for good reasons, but anything less than that ‑ and there is a query, as I understand the current state of authorities, as to whether or not any type of direction or warning should be given in respect of that evidence.

The other aspect of the prejudice, your Honours, is that the witnesses, who give this evidence of similarity, at the end of the day, with respect, are not saying that, “That is the person that assaulted me”; it simply stands at the end of the day on the basis that that person, for example, in this case, “Looks similar to the person that assaulted me.”

KIRBY J:   But that will often be the case, because crime is often performed in circumstances of darkness or circumstances where there is a deliberate attempt to disguise features to avoid detection and subsequent conviction.  So that is not unusual and therefore what is required are firm warnings by the judge concerning the dangers of identification evidence and explicit instruction, in a case such as this, that this is not really an identification evidence case; this is a case where the Crown case rested very substantially on the strikingly similar descriptions, which the victims gave of the way in which the offences took place, and that is the way the Crown sought to build its case against your client, and that is not really very unusual.

MR HANBURY:   Well it is now not unusual, your Honour, in my respectful submission ‑ ‑ ‑

KIRBY J:   The only reason this Court would intervene would be if it were concerned that there might have been a miscarriage of justice on the basis that the judge did not give clear warnings about identification evidence and that there was not another foundation on which the judgment could rest.  This was a circumstantial case from start to finish really.

MR HANBURY:   Well, your Honour, with respect, in Festa referred to the fact that the law relating to identification, as I understand what your Honour was saying, one could go down the path of having all witnesses give this type of evidence to get around any sort of warning that this honourable Court referred to in Domican and Alexander and the like.

KIRBY J:   See, looking at it from the point of view of this Court, we have recently gone over this ground in Festa and, therefore, for the purpose of exploring the issues of principle, to give guidance to courts in Australia, there is no point in bringing this case up for that purpose and therefore we have to ask is there another purpose to bring the case up.  Obviously, a purpose would be if we were concerned that a miscarriage of justice might have occurred.  But when you have the witnesses, who give evidence of the other offences and of conduct which was strikingly similar to that, the subject of this indictment, then you really remove that concern and we would not bring it up simply to go over the ground that has already been gone over in Festa.

MR HANBURY:   Your Honour, in my respectful submission, special leave in an appeal in relation to this matter would not mean going over the same ground as Festa passes over.  The position in relation to Festa was Mr Hill, one of the witnesses, gave evidence of similarity, in my respectful submission, in a true sense, in as much as in that case the witness deposed to the fact that the accused person had an olive complexion and certain other features.  The difference in this case at hand is that the witnesses gave evidence as to the fact that the photographs which showed the applicant looked similar, as opposed to him having distinguishing features or similar features.  The photographs ‑ ‑ ‑

HAYNE J:   These were photo board identifications, were they not?

MR HANBURY:   Yes, your Honour, they were.

HAYNE J:   So a photo board of 12 photos, I assume?

MR HANBURY:   Your Honour is quite right and it should be noted that one of the photo boards contained and, firstly ‑ ‑ ‑

KIRBY J:   Two photos ‑ ‑ ‑

MR HANBURY:   Two photographs of the applicant.  Your Honour, with respect, should keep it in mind that that process took place three years after the event and there was also, apart from the fact that one of the boards contained two photographs, one of the boards had writing, somebody had written on the back of the board in some fashion which, at the moment, escapes me, but the circumstances in which the photographs – and I should say, with respect, that there was a further witness who was shown a photo board which contained a picture of the applicants on it two days after an offence was committed and this is set out, your Honour, at page 88 of the summary of argument and over on to page 89 ‑ ‑ ‑

HAYNE J:   But given the way the trial judge charged the jury in this case, the accused stood or fell, did he not, on the persuasiveness of the similar fact evidence?  The trial judge charged the jury in a way that down‑played the significance of the so‑called identification or similarity evidence.  Really, the focus of this trial was the similar fact evidence, was it not?

MR HANBURY:   In my respectful submission, your Honour, not to the extent that the Crown did not want to adduce evidence of the similarity ‑ ‑ ‑

HAYNE J:   In common with every prosecutor that has ever been born, the prosecution wanted a belt, braces and a piece of string around the pair of trousers to keep them up; that comes to me as no great surprise, Mr Hanbury, but the real thrust of this case turned on the similar fact evidence, did it not?

MR HANBURY:   Well, in my respectful submission, your Honour, it turned on the photograph.  Once that photograph, in fact three photographs, were admitted into evidence, the jury could then see the connection between the offences that had occurred against the two other complainants, the description, vague though it was, that was given by the witnesses, but bolstered by the photographs and your Honour Justice Kirby did mention that the learned trial judge directed that it was not a case of identification and this, the applicant would say, is of no small concern, because in the trial judge directing the jury in that way, the jury may not have appreciated the significance of what it was that his Honour was saying.  His Honour was clearly correct, in my respectful submission, that perhaps it was not a case of identification in the legal sense, but ‑ ‑ ‑

KIRBY J:   Yes, but that was not a direction.  I mean, our criminal justice system works on the presupposition that jurors follow the instructions of the judge and the judge gave a warning that this was not an identification case, but he did not leave it at that.  He then went on to point to the inconsistencies between the testimony of the witnesses and the dangers of wrongful conviction, just on identification evidence.  So it was all before the jury and they convicted your client.  Now, we have to be convinced either that there has been a misdirection, an error of principle or an injustice to bring the matter up.  I just think it is difficult in the light of the judge’s strong directions here to conclude on either of the former conclusions.

MR HANBURY:   Except, your Honour, that the way in which the photographs were in, the way in which that evidence was acquired, it turned vague evidence ‑ it made it crystal clear, and that, with respect, is the prejudice that arises as a consequence of the photographs going in, because they bolster oral testimony, which is otherwise less evidence, in my respectful submission, than the jury being able to look at a series of photographs, and that is why it is said that there has been a miscarriage of justice, because, given all of the circumstances that the witnesses did not see the photographs, at least two of them, until three years after the event, in circumstances where the previous descriptions had been somewhat less full than they could be, understandably so, there were other problems because, on one of the photo boards, the applicant’s face appeared twice and it would

be said for the applicant that this was a serious matter, because it could have influenced the person who was looking at the photograph to pick that photograph, or the other one, that looked similar.

Consequently, it is said that the miscarriage of justice that arises as a consequence of the process that was undertaken was that the learned trial judge should not have allowed the photographs to be admitted into evidence.

KIRBY J:   Yes, thank you, Mr Hanbury.  Mr Cock, you have had an easier day today than last time.  We do not need your assistance on this occasion.  We will save it up for the next occasion, Mr Cock.

MR COCK:   I will be prepared, your Honour.

KIRBY J:   This is an application for special leave to appeal from the confirmation by the Court of Criminal Appeal of Western Australia of the convictions of the applicant.  There is no doubt that the prosecution case against the applicant was entirely circumstantial.  The prosecution conceded at trial that there was no positive identification evidence of him.  The prosecution also conceded that, if the identification evidence were the only evidence implicating the applicant, the jury could not return verdicts of guilty.

However, the prosecution case rested on the evidence of victims disclosing criminal behaviour to be strikingly similar to the behaviour of an offender in other offences the subject of the indictment to which the applicant had pleaded guilty.  The trial judge expressly told the jury that the case was not an identification case.  He warned the jury of the dangers of identification evidence and of the inconsistencies in the witnesses’ evidence. 

This Court has recently dealt with the issues of principle raised in matters such as this in Festa v The Queen (2001) 76 ALJR 291; 185 ALR 394. There is no sufficient prospect that, if special leave were granted in this case, the appeal would succeed. The Court is not convinced that a miscarriage of justice has occurred. Accordingly, special leave must be refused.

Adjourn the Court.

AT 2.41 PM THE MATTER WAS CONCLUDED