R v Drollett

[2005] NSWCCA 356

CITATION:	R v Drollett [2005] NSWCCA 356
HEARING DATE(S):	26 May 2005, 17 June 2005
JUDGMENT DATE:	4 November 2005
JUDGMENT OF:	McClellan CJ at CL at 1; Simpson J at 2; Rothman J at 69
DECISION:	(i) appeal allowed; (ii) conviction quashed; (iii) new trial ordered.

CATCHWORDS:	appeal against conviction - malicious wounding in company - whether evidence concerning film footage admissible - evidence on voir dire subsequently admitted - witness saw appellant from front view after incident ended but was unable to identify him from front view footage - witness did not see appellant from rear view but purported to identify him from that footage - whether evidence relevant - evidence of fact - evidence of opinion - witness identified clothing worn by appellant minutes before attack - witness identification by process of deduction and reference to his clothing - interpretation of video evidence - ad hoc expert
LEGISLATION CITED:	Criminal Appeal Act 1912, s6 Evidence Act 1995, Part 3.3, s56, s76, s78, s79, s137
CASES CITED:	Butera v The Director of Public Prosecutions (Vic) [1987] HCA 58; 164 CLR 180 Eastman v The Queen (1997) 76 FCR 9 R v Basha (1989) 39 A Crim R 337 R v Cassar; R v Sleiman [1999] NSWSC 436 R v Leung [1999] NSWCCA 287; 47 NSWLR 405 R v Marsh [2005] NSWCCA 331, unreported, 20 September 2005 R v Menzies [1982] 1 NZLR 40 R v Smith (Mundarra) [1999] NSWCCA 317; 47 NSWLR 419 Smith v The Queen [2001] HCA 50; 206 CLR 650
PARTIES:	Crown - Respondent Adam Drollett - Appellant
FILE NUMBER(S):	CCA 2005/288
COUNSEL:	DML Woodburne - Crown J Hickleton - Appellant
SOLICITORS:	S Kavanagh - Crown George Sten & Co - Appellant

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/41/0247
LOWER COURT JUDICIAL OFFICER:	Hosking DCJ

2005/288

McCLELLAN CJ at CL
SIMPSON J
ROTHMAN J

Friday 4 November 2005

REGINA v Adam DROLLETT

Judgment

1 McCLELLAN CJ at CL: I agree with Simpson J.

2 SIMPSON J: On 3 July 2004, following a jury trial, the appellant was convicted of an offence of malicious wounding in company, committed in the Goulburn Correctional Centre on 6 July 2002. On 12 August 2004 Hosking DCJ sentenced the appellant to imprisonment for five years with a non-parole period of three years and six months, commencing on 12 January 2005. The appellant now appeals against the conviction and seeks leave to appeal against the severity of the sentence.

background

3 Some facts are uncontroversial. On 6 July 2002 the appellant was a prisoner, then held in custody in the Goulburn Correctional Centre. Julius Graf was also a prisoner. Between 1.30 pm and 1.35 pm on that date Mr Graf was placed by a Correctional Services Officer in a space known as “6 yard”. A number of other prisoners, the majority of them of Pacific Islander origin, were already present in the yard. The appellant was among them.

4 Shortly after Mr Graf’s arrival a melee erupted. Mr Graf was attacked and injured. Eleven prisoners, including the appellant, were charged on indictment with malicious wounding in company. Their trial commenced on 28 June 2004.

5 On 20 July 2004 the Crown offered, in return for pleas of guilty by all accused, to present a fresh indictment, reducing the charges to assault occasioning actual bodily harm. Ten of the then accused accepted the offer and entered pleas of guilty to that offence. The appellant declined to do so. The jury was discharged, and a new trial began on 26 July 2004, with the appellant the sole accused. The charge he then faced was the original charge, of malicious wounding in company. The trial proceeded and the jury returned a verdict of guilty. The only issue in the trial was whether the appellant had been shown to have been a participant in the attack on Mr Graf.

6 6 yard was the subject of continuous camera surveillance. Much of the incident was thereby recorded. At least two digital cameras were positioned in the area, one at the front of the yard, and one mounted on a chimney, which produced film of the yard from the rear. These produced, not continuous video footage, but a series of still photographs taken at one second intervals. When shown on a video player, these produce a staccato-like, jerky image. It is extremely indistinct. While the film quite plainly shows the melee, involving a good number of individuals, no faces can be seen. This footage, and evidence associated with it, provides the basis for the first ground of appeal against conviction.

7 Immediately after the incident, a muster of inmates was conducted. The entire procedure was video-recorded. On this video film the appellant can clearly be seen and identified. The video image is accompanied by sound recording in which the appellant can be heard identifying himself.

the appeal against conviction

8 By s6 of the Criminal Appeal Act 1912, this court is required to allow an appeal and set aside a conviction where any of a variety of grounds is made out. The available grounds are, relevantly:

- a wrong decision of any question of law;

- that “on any other ground whatsoever there was a miscarriage of justice”.

9 Each of these is here invoked. By his grounds of appeal against conviction the appellant has pleaded error in the determination of a question of law, specifically the admissibility of evidence concerning the film footage; and miscarriage of justice by reason of the tender by the Crown of a document in the belief, later shown to have been mistaken, that it referred to an item of clothing worn by the appellant. It will be necessary to consider each of these grounds in more detail.

ground one: the camera footage

10 For precision, it is convenient to set out the first ground of appeal as pleaded. It is framed as follows:

“1. The learned sentencing (sic) judge erred in admitting the evidence of the Crown’s witness, Joseph Stephens, in so far as Joseph Stephens purported to identify Mr Drollett from security camera images of events to which he (Joseph Stephens) was not an eye witness.”

11 At an early stage of the proceedings (before the commencement of the joint trial) the Crown sought to adduce evidence of a Correctional Services Officer, Mr St Vincent, identifying four of the accused (not including the appellant) as persons depicted on the film. In a judgment dated 5 July 2004 Hosking DCJ rejected the evidence, holding that it was opinion evidence and thus excluded by the operation of Part 3.3 of the Evidence Act 1995. He added that, in any event, he would have excluded Mr St Vincent’s evidence under s137, as evidence the probative value of which was outweighed by the danger of unfair prejudice to the accused. Mr St Vincent had not been an observer of the events in question. He was employed at the Goulburn gaol and was acquainted with the four prisoners whom he purported to identify. His identification of them was made purely from a combination of his familiarity with each or any of them, and his examination of the film. It appears to have been made by a process of deduction. For the purpose of the exercise Mr St Vincent watched, not only the film footage, but video footage of the muster of inmates that took place immediately after the attack on Mr Graf, in which individual inmates were recognisable. Mr St Vincent appears to have made observation of the clothing worn by various inmates, as depicted in the muster video, and, by reference to that clothing and his observations of clothing seen on various inmates on the film footage, drawn inferences or conclusions as to the identity of otherwise unrecognisable and unidentifiable individuals on the film footage. In doing so, he may (it is not entirely clear) also have drawn upon his knowledge of the men and of their physiques and any “distinctive characteristics” they had.

12 Although it was said that Mr St Vincent identified all eleven accused, including the appellant, the judgment of 5 July is confined to the question of the admission of his evidence against and in relation only to four of the men. The appellant was not one of those four.

13 Two days later, on 7 July, the same question arose in relation to the identification of the appellant purportedly made by Mr St Vincent in a similar, but not identical, manner. The important difference was that Mr St Vincent claimed to be able to identify the appellant’s face in one of the images on the film. Nevertheless, Hosking DCJ also rejected Mr St Vincent’s purported identification of the appellant, on the basis that it was opinion evidence and also inadmissible by reason of the provisions of Part 3.3 of the Evidence Act. For reasons which will become apparent, it is appropriate to set out some of what his Honour held in giving judgment on this issue. It was:

“That said, the problem for the Crown is that unless this evidence can be classified as evidence of fact, this evidence is also evidence of opinion, for the same kind of reasons I indicated in my earlier judgment, and is therefore inadmissible, unless the subject of a relevant exception under Part 3.3 of the Evidence Act. ... It appears to me that the preponderance of superior courts’ views on this question is that this kind of evidence, even if it does involve identification of a face in a poor quality image is not fact, but is opinion. That being so, for the reasons I gave on Monday, in my view, it is excluded by virtue of the opinion rule, as no relevant exception applies in this case, for the reasons I gave.”

14 The trial of the appellant commenced on 26 July 2004. At the beginning of the second day, counsel for the appellant told Hosking DCJ that, overnight, the Crown Prosecutor had advised her that he proposed to adduce evidence from a Mr Joseph Stephens. Mr Stephens was a Corrective Services Officer. He had given evidence in the committal proceedings, but the evidence the Crown now proposed to adduce from him went beyond the evidence he there gave, and beyond any statement which had been served upon the appellant’s legal representatives. Of the evidence he proposed to call from Mr Stephens, the Crown Prosecutor said:

“He ... is the officer who saw the actual attack and recognised [the appellant] as being involved in the actual melee. He saw them and saw them coming out of it basically, now he actually saw the video, I think, before the committal, and will be able to say from that he was able to identify the various persons that he saw involved in this melee, including Mr Drollett.”

15 Counsel who appeared for the appellant both at trial and on appeal strenuously signified her objection to the additional evidence. There followed a lengthy debate about the admissibility of Mr Stephens’ proposed additional evidence. The transcript does not contain any record of a statement being provided to his Honour, nor, at that stage, of Mr Stephens giving evidence on the voir dire. Indeed, counsel for the appellant complained that she had never seen a statement of the evidence in question. The debate appears to have proceeded on the basis of the outline of Mr Stephens’ proposed evidence given by the Crown Prosecutor and extracted above.

16 Counsel for the appellant complained that the proposed evidence was “completely new” and unexpected. As a fallback position to her objection to the admission of the evidence she sought the opportunity to cross-examine Mr Stephens under the procedure authorised in R v Basha (1989) 39 A Crim R 337.

17 Hosking DCJ was plainly disposed to admit the evidence and was reluctant to permit the cross-examination in the absence of the jury as sought by counsel. At least in part this was because the trial was under way, a jury had been empanelled, and were being kept waiting during the discussion, and would be excluded from the court for a longer period if he acceded to counsel’s alternative proposition. Eventually he agreed to allow, within limits, some cross-examination. He confined the procedure to ten minutes. By this time, it was reasonably plain that he had resolved to admit the evidence. He did not at any time give formal reasons for this decision.

18 It was a little later on that day that the voir dire examination took place. Mr Stephens was, in fact, the officer who had taken Mr Graf to yard 6. He said that, having done that, he walked away to yard 5, which was five or ten metres away. He became aware of the melee and returned to yard 6, at a time when it was still in progress. He saw three men, one of whom was the appellant, just as the melee was breaking up. It is of some significance that, at no stage, did Mr Stephens claim to have observed any part of the attack on Mr Graf. What he observed was limited to what happened immediately after its conclusion.

19 Mr Stephens had been shown the film footage in the Crown Prosecutor’s chambers prior to his giving evidence. It was played again during the course of his voir dire evidence. He purported to identify the appellant as one of the men actually involved in, and then emerging from, the fracas. As the film progressed, Mr Stephens pointed out what he said was the appellant in various positions. This included identifying the appellant at a time before the incident occurred.

20 In cross-examination he conceded that he had not been an eye witness to at least some of the events depicted on the film, and in which he had purported to identify the appellant.

21 At the conclusion of his evidence-in-chief on the voir dire Mr Stephens was asked this question:

“... Now in relation to that melee, you did not see Mr Stephens (sic) – [the appellant] come out of that melee after you saw him go in it until you identified him coming out, did you?”

Mr Stephens assented to that proposition. His Honour then asked this question:

“Mr Stephens, is the position this – that what you have identified on those images today is actually what you saw at the time, in terms of Mr Drollett?”

To this Mr Stephens replied:

“I didn’t see Drollett until the end, because I didn’t, originally I didn’t see anyone go into the fight, because I was over at 5 yard, and by the time I walked back to 6 yard, it was just like a big mass rumble.”

He then agreed with the proposition put to him by the Crown Prosecutor that he had seen the appellant come from the melee, as depicted in the video.

22 In cross-examination he said that he had seen the appellant “coming out of the fight”, but that on the footage he could not identify him from the front view; he could only identify the appellant from “the chimney view”, but that this was something he had never “eye-witnessed”.

23 In other words, Mr Stephens in fact saw the appellant from the front view, (but after the incident had ended) but was unable to identify him from the front view footage; he did not see the appellant from the rear view, although he purported, from the footage, to identify him from that perspective.

24 At the conclusion of this evidence a further debate took place. His Honour ruled that the evidence would be admitted, saying that this was for reasons he had given during the course of the exchanges with counsel.

25 The exchanges between counsel and his Honour are not easy to follow. Counsel sought to persuade his Honour that the identification purportedly made by Mr Stephens was, in reality, no different in character from the identification purportedly made by Mr St Vincent, evidence of which had been rejected as opinion evidence. That was because, although he was in the vicinity at the time of the events, Mr Stephens was not, in fact, an observer of those events until the very end. Counsel argued, therefore, that, in same way as Mr St Vincent’s tendered evidence was opinion evidence, so also was that of Mr Stephens. His Honour did not accept this. He said:

“No, Ms Hickleton, he was there on the day, he saw your client on the day, he said that, on the day, as I understand his evidence, he looked through the security images, he recognised, in the images – correct me if any of this is wrong – a man he believes is your client. He now says ‘I can recognise that image – that figure rather – in other of the images’ -” (t 90)

26 In answer to a further submission that the jury was equally well placed to make the comparison between the two sets of images (a reference to the decision of the High Court in Smith v The Queen [2001] HCA 50; 206 CLR 650, to which I will shortly come), his Honour said:

“But Ms Hickleton, how can that be so when the position is plainly that he saw, with his own eyes he says, your client on the day, he saw him in the images on the day with his own eyes, and all he is doing is saying, ‘Before the melee I see the same images, I believe that to be Drollett’. That is not the same position as the jury is in – how could it be ...”

27 His Honour accordingly held that the evidence of Mr Stephens was not irrelevant. Counsel repeated her submission that it was, in the same way as Mr St Vincent’s evidence, opinion evidence. She relied upon the rulings of 5 and 7 July. His Honour then said something puzzling. It was:

“No, I changed my ruling, I changed my ruling in the second one because initially I thought that the law was as represented by Justice Simpson in Leung [ R v Leung [1999] NSWCCA 287; 47 NSWLR 405] and Justice Kirby in his (dissenting) judgment in Mundarra Smith , when I considered the matter anew, I came to the view that that does represent the law, and that the law is as set out by Mr Justice Sheller in Mundarra Smith when it was before the Court of Criminal Appeal [ R v Smith (Mundarra) [1999] 47 NSWCCA 317; 47 NSWLR 419], with whom the other members of the court agreed. In my view, the law says that Mr Stephens’ evidence is evidence of fact, and not opinion.” (t 92)

This passage is puzzling because the judgment of 7 July does not evidence a change of opinion from that expressed in the judgment of 5 July.

28 Mr Stephens then gave evidence in the presence of the jury. He acknowledged that he could not see or positively identify the appellant in the images representing the events at the commencement of the attack on Mr Graf. He outlined how he had taken Mr Graf to yard 6. He said that Mr Graf had been greeted by other inmates. He (Mr Stephens) watched for five seconds and then turned and walked away. He had only walked about five to ten metres when he turned and saw “what appeared to be like a rumble”. He saw this through the grilles and walked back where he observed that the incident was rather more serious than he initially thought. He described the melee, which involved approximately ten Islander inmates. He said that he saw Mr Graf lying on the ground. He recognised three inmates, one of whom was the appellant, who was leaving the scene of the incident and walking towards the rear of the yard. He participated in the muster which was immediately conducted and in fact searched the appellant, noticing that he had a cut to one hand.

29 Mr Stephens then, in court and in the presence of the jury, again viewed the security film footage. The initial images represented events shortly before the incident began, and before Mr Graf was in the yard. As the video was played, Mr Stephens identified the appellant, initially as:

“ ... the second man on the wall side.”

30 He then traced the person on the footage he said was the appellant. All of this, it appears from the transcript, represents the scene prior to the arrival of Mr Graf – and therefore prior to the arrival of Mr Stephens. It appears that the evidence I have just outlined was evidence given in relation to the footage from a security camera which was trained upon the front of the area, which was referred to as “the front view”.

31 The Crown Prosecutor then directed Mr Stephens’ attention to footage which depicted “the rear view” of the yard. He was asked to indicate when the footage showed Mr Graf coming into the picture, and he did so. He was then asked to observe the footage “image-by-image” and to indicate if he recognised anybody. At this point he said:

“Inmate Drollett’s the fourth man from the bottom of the screen with the green jacket and wearing a cap.”

He pointed out for the jury on the video the person to whom he referred. He identified the appellant in the next image as being “second man off the wall” and continued to point out, on the footage, the man he said was the appellant.

32 In answer to a leading question by the Crown Prosecutor, Mr Stephens said that his identification of the appellant was based upon his knowledge of him. Mr Stephens had worked in the unit where the appellant was housed for about 14 months and had had regular contact with him. There was no evidence before the jury as to how long the appellant had been an inmate. (Reference to the appellant’s criminal history, otherwise available to this court, would suggest that he had been a prisoner for some time, but that does not necessarily mean that he had been held at Goulburn Gaol during the whole of the time Mr Stephens had been there engaged.)

33 A not dissimilar issue arose in Smith (Mundarra) v The Queen [2001] HCA 50; 206 CLR 650. There, a bank robbery had taken place which had been recorded in photographs taken by security cameras. Individual participants were depicted in the photographs. In the trial two police officers gave evidence identifying that appellant as one of the persons so depicted. Each did so on the basis that he had some familiarity with the appellant by reason of prior encounters with him. In this court (R v Mundarra Smith [1999] NSWCCA 317) the appellant’s appeal was dismissed. The court held that the evidence of the police officers was evidence of fact, and properly admitted.

34 It is material to note that, from the judgments of the High Court, it appears that at least one of the photographs said to have been of the appellant was of good quality and clarity. All five members of the High Court agreed that the evidence of the police officers should not have been admitted. However, there were two radically different approaches that led to the same result. In the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ, the reason was that the evidence failed the test of relevance posed by s56 of the Evidence Act 1995. Kirby J held that it was relevant evidence, but was properly characterised as opinion evidence, and was not brought within the admissibility rules referable to opinion evidence contained within Part 3.3 of the Evidence Act.

35 It is appropriate to begin with a consideration of the application of the conclusions contained in the joint judgment. It is of some importance to note that the judgment does not purport to lay down a blanket rule as to the admissibility of evidence of identification of a person depicted in photographs. The result, in my view, turned significantly upon the particular facts of that case. Facts that influenced the outcome were:

- the relatively limited opportunity the two police officers had had of observing the appellant and gaining familiarity with his physical appearance;

- the relatively greater opportunity the members of the jury had had to observe the appellant during the course of the trial;

- the quality of the photographic evidence;

- the absence of any evidence that the appellant had changed his appearance between the taking of the photographs and the trial.

36 The task the jury was called upon to perform was to decide whether it was the appellant who was depicted in the photographs that pictorially recorded the offence charged. The images were, apparently, of satisfactory clarity; the jury, during the course of the trial, had had the opportunity of observing the appellant, so that they were well placed to make the comparison between the physical appearance of the person in front of them, and the person depicted in the photographs.

37 On these facts, the majority held that the police witnesses were in no better position to make a comparison between the appellant and the person depicted in the photograph; and that the jury had available to it the same data in order to resolve the question of whether the appellant and the person in the photographs were the same as was available to the police witnesses. Their Honours wrote:

“The fact that someone else has reached a conclusion about the identity of the accused and the person in the picture does not provide any logical basis for affecting the jury’s assessment of the probability of the existence of that fact when the conclusion is based only on material that is not different in any substantial way from what is available to the jury.”

38 To permit the police officers to make the comparison was to introduce a superfluity, or an irrelevancy, into the proceedings. The superfluity was the parallel performance of the jury task by the two police witnesses.

39 Accordingly, their Honours held that the evidence of the police witnesses was irrelevant and therefore inadmissible.

40 Kirby J took a very different approach. Because he took the view that the test of relevance presented by the Evidence Act was an “undemanding” one, he considered that the evidence was relevant. He proceeded, however, to hold that it was properly characterised as opinion evidence which was rendered inadmissible by reasons of the provisions of Part 3.3 of the Evidence Act.

41 While Kirby J was plainly in dissent on the question of whether the evidence was or was not relevant, it would not be right to dismiss his Honour’s view on whether the evidence was opinion evidence as a dissenting one: it did not command the support of the other members of the bench because they decided the case on the anterior question of relevance. Counsel for the Crown has urged that, since the majority in the High Court did not rule upon the question, the prevailing view of this court, expressed in Smith, is that evidence of identification from photographs is evidence of fact and not opinion.

42 I do not accept that the decision of this court in Smith can be so construed. Sheller JA, with whom the other members of the court agreed, recognised the difficulty of too rigid a classification of evidence into fact or opinion. His Honour said:

“19. If a distinction must be made it can only be one of degree, calling for a decision as to whether, on a continuum which is unmarked and for which there is no exact measure, particular testimony has past (sic) the point where it has become evidence opinion.”

43 There may be many instances where identification from photographs, even if a person is well known to the witness as a spouse, has to be classified as opinion evidence. It cannot always be assumed that the photographic material will clearly depict the person who is its subject. The person may be partly obscured, or may be photographed from an unusual angle concealing facial or other defining features. In such a case, the evidence would properly, in my view, be classified as opinion evidence.

44 The result of this analysis is that, in every case, it will be necessary to examine the nature of the evidence proposed to be adduced, and all relevant circumstances, before a determination can be made whether the evidence tendered falls into the category of opinion evidence and subject to the admissibility provisions of Part 3.3 of the Evidence Act.

45 But it is premature, at this stage, to embark upon a consideration of whether the evidence is evidence of opinion or fact. The majority in the High Court were emphatic that the first question for determination is that of relevance. The decision of the majority in Smith that the evidence tendered in that case was irrelevant is not necessarily determinative that the evidence in the present case was also irrelevant.

46 The majority in the High Court left open the possibility that, in other circumstances, evidence identifying an accused person as a person in photographic material could be relevant. One example they gave was where there was evidence that the accused person’s appearance had changed since the making of the photographic image. In that case, evidence that the picture depicted the accused as he or she appeared at the time the picture was taken would not be irrelevant. Another illustration was where there was some distinctive feature about the accused’s appearance or manner of movement, revealed in the photographs, which would not otherwise be apparent to the jury. In such a case evidence of the fact of the distinctive feature, and the witnesses’ conclusion of identity, would not be irrelevant. Neither of these here applies. However, the circumstances are not identical or even parallel. The four factual matters that influenced the majority do not all here apply.

47 The quality of the imagery is very poor. I have examined the footage, both in court and in chambers. To describe it as indistinct is an understatement. It is extremely difficult to make out the features of any of the participants, and extremely difficult to isolate any participant or even to track any participant through the events recorded. But the difficulty so created existed equally for Mr Stephens and for the jury (and for this court). I do not think the poor quality of the recording determines, or even contributes to the determination of, this issue.

48 As I have noted, Mr Stephens gave evidence from which it might be inferred that he had a reasonably high degree of familiarity with the appearance of the appellant. By “appearance” I intend to include characteristics such as his manner of movement and other “body language”. The jury would not have been in as good a position as he in that respect. It is pertinent to note that, in the judgment of 5 July, Hosking DCJ said (of the accused, at a time when 11 were on trial):

“Some [of the accused] may be considered dangerous. The dock they are in is therefore a secure one behind glass except for a small opening. The distance from the jury box to the dock must be in the order of 15 metres. The idea that with these kinds of limitations the jury can be in as good a position to make identifications from the surveillance camera images borders upon the unreal.” (t 10)

49 The evidence does not show whether, by the time the appellant went on trial as a sole accused, the same conditions of custody applied. There is no reason to think that the trial did not proceed in its original courtroom, with the facilities described by his Honour. That would have affected the capacity of the jury to make the comparison between the appellant and the persons depicted on the footage. I do not think it could be said that the jury was in as good a position as Mr Stephens to make the comparison. On that basis, I incline to the view that the evidence was relevant. It was capable of rationally affecting the jury’s determination of a fact, indeed, the ultimate fact, in issue.

50 Counsel who appeared for the Crown on the appeal argued that that part of the evidence given by Mr Stephens identifying him in the minutes before the attack on Mr Graf was relevant and important because it showed the appellant wearing a jacket and cap. He was not so clothed at the time of the muster video and it would have been difficult for the jury to have made a comparison between those two pieces of evidence in such a way as to draw a conclusion that the appellant was depicted in the camera footage. That argument does not assist the Crown. If Mr Stephens saw the appellant and observed his clothing prior to the attack on Mr Graf, at or about the time he delivered Mr Graf to 6 yard, then there is no reason why he could not give that evidence orally. That would enable the jury to examine the film footage in order to ascertain whether there was a person there depicted who was wearing a jacket and cap and, if appropriate, conclude that that person was the appellant. It was not necessary for Mr Stephens to identify the appellant on the film footage in order for the jury to be put in possession of that piece of information. If, on the other hand, Mr Stephens could not, absent the film footage, give evidence that the appellant had been wearing a jacket and cap, then a question arises as to the source of his information as to the appellant’s clothing.

51 Because of the greater advantage Mr Stephens had compared with the jury in relation to his capacity to identify or recognise the appellant, I have come to the view that the decision in Smith does not operate in such a way to require a finding that his evidence was irrelevant. Mr Stephens’ evidence was sufficiently different in quality from the evidence of the two police officers in Smith to permit a different conclusion. I am of the view that his evidence was relevant.

52 Although the majority in the High Court excluded the evidence as irrelevant, it is not a necessary consequence that, if comparable evidence passed the relevance test, it would be admissible. Their Honours expressly alluded to the fact that evidence of the kind to which they referred as potentially relevant might raise other questions, one of which was the opinion rule.

53 That then requires consideration of whether Mr Stephens’ evidence was evidence of opinion or fact. Much has been said in recent times about the dividing line between evidence of opinion and evidence of fact. In essence, it seems that the better view is that there is no dividing line, or at least no clear dividing line: see Smith, HCA, per Kirby J, Smith, NSWCCA, per Sheller JA; R v Leung.

54 It is not at all uncommon for a witness to give evidence that a photograph or video depicts a particular place or scene as the witness observed it at some relevant time. Such evidence may include evidence that the film depicts an incident or event the subject of the litigation. Ordinarily, that evidence will be admitted as factual evidence, and its relevance will be apparent.

55 It is not difficult to envisage that a witness giving evidence of that kind may also be permitted to identify objects or persons depicted in such a scene which would not be readily (or at all) identifiable to the jury. One example is where the person depicted is photographed from the rear or partly obscured. A witness will be permitted to give evidence of that person’s identity. But this is evidence of fact. It is evidence of fact given from the witness’ recollection. The original or primary evidence, is, in reality, the description of the events given by the witness. The photographic material merely illustrates the oral testimony that the witness would be able to give describing the event in question.

56 It seems to me that his Honour mistook Mr Stephens’ evidence as being evidence in that category. I have already extracted some of the exchanges with counsel in which he seems to have taken the view that Mr Stephens was giving evidence, from the film footage, of what he had independently observed. That is simply not the case. Mr Stephens was not giving evidence that the footage represented what he had observed and which therefore illustrated his account of the event. The footage represented an event which he had not personally observed, except for a very small portion. When he purported to identify the appellant on the footage, he was not doing so by reference to something he had observed or of which he could give oral evidence that was illustrated by the film. Here the primary evidence was the film footage. Mr Stephens’ evidence was no more than an educated interpretation of what was depicted in the footage.

57 It was, therefore, opinion evidence.

58 The exchanges following the voir dire that I have extracted above indicate that his Honour did not clearly understand the evidence given by Mr Stephens on the voir dire.

59 Counsel was correct in putting to his Honour that Mr Stephens was not purporting to identify on the film footage images of the appellant that he had seen in reality. He had clearly said, in answer to questions from his Honour, that he did not see the appellant until the fracas was effectively over. In one sense, he was in a better position than Mr St Vincent to make the comparison because, having seen the appellant emerging from the melee, he may have been able to trace him back through the film footage. But this was not what he purported to do.

60 On the basis of the whole of the evidence given by Mr Stephens, I have come to the view that his identification of the appellant was made, not by recognition or familiarity with the appearance of the appellant, but rather by a process of deduction. What he purported to do was to track the indistinct image of a person he asserted to be the person initially identified as the appellant by reference to his clothing. That, in my view, is opinion evidence. It would be different if, at any time, he had said that he recognised the footage as depicting the scene to which he had been an eye witness, and that the footage accurately depicted what he had seen; that would properly have been classified as evidence of fact.

61 That means it is necessary to consider the provisions of Part 3.3 of the Evidence Act. The key provision is s76(1) which provides as follows:

“76 The opinion rule

(1) Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.”

62 There follow, in the Act, a series of exceptions. Relevantly, ss78 and 79 provide as follows:

“ 78 Exception: lay opinions

The opinion rule does not apply to evidence of an opinion expressed by a person if:
(a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and
(b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event.”

“79 Exception: opinions based on specialised knowledge

If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.”

63 The exception provided by s78 is not applicable as evidence of Mr Stephens’ opinion is not necessary to obtain an adequate account or understanding of his perception of any matter or event. S79 has been interpreted widely enough to include the evidence of “ad hoc experts”: see R v Menzies [1982] 1 NZLR 40; Butera v The Director of Public Prosecutions (Vic) [1987] HCA 58; 164 CLR 180; Eastman v The Queen (1997) 76 FCR 9; R v Cassar; R v Sleiman [1999] NSWSC 436; R v Leung. I would, tentatively, take the view that the concept of “ad hoc expert” is capable of including a person who has particular familiarity with another in such a way as to enable that person to give evidence identifying the other person by reference to photographic or video evidence. However, that is not what Mr Stephens purported to do. His evidence, in my view, did no more than this. He selected a person on the film footage whom he considered to be the appellant; he then followed that person through the film footage in order to isolate him at different points during the course of the incident. There was no evidence that Mr Stephens had any particular expertise in deciphering indistinct, staccato-like, jerky film footage. Nor was there any adequate evidence that he had the advantage of particular familiarity with the appellant, such as to enable his classification as an “ad hoc expert.”

64 The use of video evidence has become commonplace in recent times, and it can be expected that many new factual issues will arise. I would emphasise that the conclusion I have reached in this case depends upon an analysis of the evidence given by Mr Stephens, initially on the voir dire, and then in the presence of the jury. It may be that, on further investigation, the gaps in the evidence can be overcome. The conclusion I have reached should not be taken as foreclosing in all cases the use of a witness’s evidence to assist a jury in the interpretation, or the identification of, particular parts of an indistinct video. Each case will depend upon its own evidence.

65 Further, it may be that some parts of Mr Stephen’s evidence could have been shown to be admissible. My conclusion is based on the absence of any clear evidence to demonstrate his expertise, or, alternatively, that what he was doing was identifying a scene that he had observed, and that he was able to recall during his evidence.

66 In the result, I am satisfied that the evidence was not admissible. I would therefore allow the appeal against conviction and order a new trial.

67 The second ground of appeal concerns an error that was made during the course of the trial. Since resolution of that ground of appeal cannot affect a subsequent trial (on the safe assumption that the same error will not be made again) it is unnecessary to decide that ground of appeal. It is also unnecessary to determine the application for leave to appeal against sentence.

68 Since these reasons for judgment were prepared the attention of the Court was drawn to the decision of this Court, constituted by Studdert, Kirby and Howie JJ, in R v Marsh [2005] NSWCCA 331, unreported, 20 September 2005. That was yet another case involving evidence of identification from surveillance photographic evidence. However, in that case, the photograph was published in a newspaper and the person depicted in it was recognised by the sister of the accused, who came forward and disclosed his identity. The sister gave evidence in the trial. A good deal of her evidence was extracted in the judgment. It is apparent that she was very certain as to her identification. In part, her certainty derived from recognition of clothing worn by the person in the photograph.

69 Studdert J, with whom Kirby and Howie JJ agreed, reviewed the evidence and also the judgments of this court and the High Court in Smith. He came to the view that the evidence given by the sister was in a different category from that of the police officers in Smith, not least because of her longstanding familiarity with her brother and her opportunity to observe his stature, stance, and facial features. Accordingly, he came to the conclusion that the evidence was direct evidence – that is, factual evidence and not opinion evidence.

70 However, he also concluded that, if that were wrong, the sister ought to be regarded as having specialised knowledge based upon experience, which he held to be admissible under s79 of the Evidence Act.

71 There is no analogy between the evidence given by the sister in that case and the evidence given by Mr Stephens in the present case. True it is that Mr Stephens claimed to have some familiarity with the appellant, but it was nothing like the degree of familiarity that the sister had in Marsh. The extent of Mr Stephens’ familiarity with the appellant was never spelled out. The decision in Marsh does not alter the conclusion I have reached above.

72 The orders I propose are:

(i) appeal allowed;

(ii) conviction quashed;

(iii) there be a new trial.

73 ROTHMAN J: I agree with Simpson J.

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