R v Adams (No 3)

The witness, Ms Kennedy (now known as Ms Parker) believes that she can now identify a clog depicted in a black and white photograph shown to her, many years after the events in question in 1983, as a clog worn by the deceased.

That evidence is objected to by defence counsel on the basis of relevance, as that concept is defined in s 55 of the Evidence Act 1995 (NSW).

Various attacks are made upon that assertion of the witness. They include that the witness did not speak of the footwear of the deceased in her first statement of 29 September 1983; that the witness spoke of different footwear in her statement of 22 April 2009; that the witness has previously spoken of the item in the photograph as similar to or “looking like” the footwear of the deceased (without purporting to make a positive identification) at the inquest on 6 December 2010; that another witness has spoken of the clogs in question as being a different colour from that described by Ms Kennedy; and, finally, that the same witness has spoken of the accused wearing clogs - indeed, those clogs - himself.

All of those attacks are founded upon evidence placed before me on the voir dire by both parties.

All of that may be accepted. But the test of admissibility that I must apply, as the judge of the law, is founded upon relevance. That is, as defined, a rather low threshold and is, in turn, founded on at least three contingencies. The test in s 55(1) of the Evidence Act 1995 (NSW) is as follows:

As well as that, the High Court of Australia has now made it quite clear that this question of admissibility must be approached on the assumption that the tribunal of fact accepts the evidence: IMM v The Queen (2016) 90 ALJR 529; [2016] HCA 14 at [39].

It is true that there is, and must be, a residual category in which evidence is not relevant simply because it is preposterous and, therefore, cannot rationally affect anything. An example might be evidence from a mentally ill person that he or she saw a Martian or the Devil walking down a crowded city street without other persons reacting to that event in any way.

It is also true that one may very gravely doubt the reliability of an identification of a mass-produced item, provided 33 years after the events in question, from a black and white photograph. On the other hand, it is possible that the witness will be able to justify the purported positive identification on the basis, perhaps, of some highly noteworthy feature of the footwear that was not previously visible to her in a previous version of the photo.

To my mind, all of those determinations are questions of weight. They are for me, in my ultimate determination of verdict, as the tribunal of fact. They are not for me, as the tribunal of law, with regard to the question of admissibility and, in particular, relevance.

Accordingly, my ruling is: the purported identification of the clog by Ms Parker is admissible in the trial.