Smith v The Queen

What happened?

The prosecution called police officers who knew the accused to say that the man in the bank's security photographs was him. The jury had the photographs and the accused in front of them. The officers had seen him before; beyond that, they were looking at the same images the jury was.

What did the Court decide?

The evidence was irrelevant. The officers were in no better position than the jury to make the identification, so their opinion could not rationally affect the jury's assessment of the very question the jury was there to decide.

Why does this case matter?

Because of the door it was decided at. Everyone's instinct with this kind of evidence is to reach for the opinion rule, or for a discretion to exclude prejudicial material — and the majority never got to either, leaving both expressly undecided at [16]. The evidence failed at the first gate, which most advocates treat as a formality to be recited and moved past. Kirby J did reach the opinion rule and excluded the evidence under it, so "the Court" is the wrong subject for that sentence.

That has a practical consequence worth more than the doctrine. An objection on relevance is different in kind from an objection under a discretion: it is not a weighing of probative value against prejudice, and it does not ask the judge to form a view about how a jury might misuse the material. It asks a prior question, and where that question can be answered against the evidence there is nothing left to weigh.

Exam and application relevance

When identification evidence appears in a problem, ask what the witness had that the fact-finder lacks -- prior familiarity, a better view, a distinguishing detail. If the answer is nothing, the analysis stops at relevance and the discretions never arise.

Check your understanding

A witness who had known the accused for years identifies him from the same footage, describing a distinctive walk the jury would not recognise. Does the analysis change, and at which step?