11 Street CJ said, at 213-4:
"Mr Donovan has challenged the admission into evidence of what was said by the witnesses in the passages that have been quoted. He contends that it was opinion evidence and that it was inadmissible on the basis that the witnesses were not competent to express an opinion regarding the identity of a man with a stocking over his face with a man that they knew. He contends also that it was hearsay in that it involved an account of recognition on an earlier occasion, something which had taken place outside the court rather than in the course of the trial. Finally he contends that the witnesses were being asked to state an opinion upon an ultimate question which it was the function of the jury to determine.
As I have earlier said, I entertain no doubt as to the admissibility of this evidence. Two persons such as the Furlongs who saw the photograph at the bank were, in my view, fully competent to give evidence at the trial identifying the man in that photograph as the man who used to live opposite to them. It is to be observed that Mrs Furlong gave her evidence in the past tense in that she said she recognized the man in the photograph as the man who lived opposite to her, meaning that she made this recognition at the time she saw the photograph at the bank. Mr Furlong carried his evidence expressly through to the present tense of the trial in his recognition of the man in the photograph as the man who used to live opposite to him and his wife. There was, however, no significance attaching to the past tense used by Mrs Furlong in the contest that arose at the trial regarding admissibility. The point which was argued was whether it was open to a witness such as Mr Furlong or Mrs Furlong to give evidence that a man shown in a security photograph was a particular individual known to them.
In my view such evidence is clearly admissible. It is quite apparent from a reading of Mrs Furlong's evidence that, although expressed in the past tense, she was confirming a continuing and current state of mind regarding the identity of the man in the photograph with the man who used to live opposite to her. Indeed, the absence of significance on this point of tense could not be made clearer than by the bringing forward of the matter into the present tense in the cross-examination of Mr Furlong. The matter being contested was essentially whether it was proper for a witness to say that a person shown in a photograph was a particular person known to them. I can see no basis for doubting the admissibility of evidence along these lines.
So far as concerns the evidence from Mrs Delaney, the position is even stronger. Mrs Delaney was able to say, and did in fact say, that the photographs shown to her of some of the scenes at the robbery at East Hills showed the appellant. Again I can see no justifiable basis, either in principle or on authority, for precluding this evidence from being placed before the court. Mrs Johnson likewise in relation to the Oatley robbery said the same thing, namely, that the man photographed in the security photographs was the present appellant.
The argument which Mr Donovan has presented persuasively to the effect that the witnesses were deposing by way of an opinion to an ultimate question which it was for the jury to determine does not, in my view, have any substance. This was a clear matter of evidence in respect of which each of the four witnesses from whom extracts have been quoted was competent to give admissible evidence along the lines of the questions asked of them."