R v Fisher

[2001] NSWCCA 380

CITATION:	R v FISHER [2001] NSWCCA 380
FILE NUMBER(S):	CCA 60771/00
HEARING DATE(S):	27 August 2001
JUDGMENT DATE:	11 October 2001
PARTIES :	Graham Francis Fisher - Appellant Crown - Respondent
JUDGMENT OF:	Sheller JA at 1; Sully J at 29; Hulme J at 30

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/61/0152
LOWER COURT JUDICIAL OFFICER :	Nield DCJ

COUNSEL :	H Dhanji - Appellant G E Smith - Crown
SOLICITORS:	D J Humphreys - Appellant S E O'Connor - Crown
CATCHWORDS:	Criminal Law and Procedure - Admission of evidence - accused identified in line-up - where none of the other men in the line-up were of similar appearance to the accused - probative value of evidence outweighed by danger of unfair prejudice - s 137 Evidence Act 1995.
LEGISLATION CITED:	N/A
CASES CITED:	R v BD (1997) 94 A CrimR 131 Papakosmas v The Queen (1999) 196 CLR 297 Alexander v The Queen (1981) 145 CLR 395
DECISION:	1. Appeal allowed; 2. Quash the conviction; 3. Order a new trial.

IN THE COURT OF
CRIMINAL APPEAL

60771/00

SHELLER JA

SULLY J

HULME J

Thursday, 11 October 2001

Regina v Graham Francis FISHER



The appellant was convicted of assault with intent to rob. The main question in the case was one of identification. Witnesses claimed they saw the same person who had committed the crime with a woman later that day. An identification parade was held three days after the incident, and two witnesses of the crime identified the appellant. The appellant objected to the admission of this evidence at trial on the ground that its probative value was outweighed by the prejudice to the defendant (s137 Evidence Act 1995). The basis of the objection was that the appellant was the only person in the line-up of six persons to match the description given by witnesses of a man of aboriginal appearance with shoulder length hair. The trial Judge admitted the evidence, and the appellant challenged this decision. An additional challenge was made on the basis that the trial Judge did not direct the jury to consider the identification evidence separately from evidence connecting the appellant with the woman.

Held: (per Sheller JA, Sully J and Hulme J agreeing):
1. The jury was entitled to take account of the evidence of the appellant’s association with the woman together with the identification evidence, if this was otherwise admissible.
2. None of the men in the line-up parade had an appearance similar to the appellant. Namely, none of them were of aboriginal appearance with shoulder length hair.
3. The inherent tendency of a witness at the identification parade to select the appellant as the only person answering this description had the effect of lessening the probative value of this evidence and of increasing the danger of unfair prejudice. This evidence should have been excluded pursuant to s137.
4. The admission of the identification evidence resulted in a substantial miscarriage of justice.

ORDERS


1. Appeal allowed;
2. Quash the conviction;
3. Order a new trial.

*******

IN THE COURT OF
CRIMINAL APPEAL

60771/00

SHELLER JA

SULLY J

HULME J

Thursday, 11 October 2001


Regina v Graham Francis FISHER

Judgment

Introduction
The appellant was arraigned on an indictment containing one count of assault with intent to rob and an alternative count of attempt to steal from the person. The offence was alleged to have been committed on 21 March 1999 at Orange. The alleged victim was Fiona Wymer (Mrs Wymer). The appellant pleaded not guilty and was tried before his Honour Judge Nield and a jury of twelve. The trial began on 23 January 2001 but was aborted on 25 January. The trial began again on 29 January. On 30 January the jury returned with a verdict of guilty on the count of assault with intent to rob. On 9 February 2001 the appellant was sentenced to imprisonment for two years with a non-parole period of nine months, the non-parole period to be served by way of periodic detention.

2 On this appeal there was no issue that on 21 March 1999 at 2.15 pm, shortly after Mrs Wymer had withdrawn $220 from a National Australia Bank automatic teller machine, a man grabbed her arm from behind in an attempt to take the money. The assailant was unsuccessful and ran off down the street. Mrs Wymer’s daughter, Jeanne (the victim’s daughter), was with her at the time. She said that she saw the offender’s face for a few seconds. The appellant participated in an identification parade and was identified by the victim’s daughter. Mrs Wymer was unable to make any identification. The incident was also witnessed by four men in a car. One of them, Darren Pritchard, picked the appellant out in the identification parade. Three of the four men, Darren Pritchard, Bradley Murray and Clinton Pritchard, said they had seen the offender walking with a woman not far from where the offence took place a short time before the offence.

3 Darren and Clinton Pritchard recognised the woman as Ricky Frail, having been to school with her. Both these witnesses were aware that Ricky Frail had a sister, Jamilla. Both said they were sure they saw Ricky and not Jamilla. Both said they could tell the sisters apart on the basis of one being a bigger build than the other. Darren Pritchard said that Jamilla was a smaller build than Ricky. Clinton Pritchard said that Jamilla was thicker set.

Record of Interview

4 Senior Constable Darcy gave evidence that he had conducted a record of interview with the appellant on 21 March 1999. The record of interview was admitted into evidence. In it the appellant stated that he was, and had, for a number of months been in a relationship with Ricky Frail. He said he had gone down town with her that day, but that he had lost her and she went with her sister. He said he was wearing a blue shirt and blue jeans. He had changed these after getting home, about half an hour before the police came. He denied any knowledge of the offence and agreed to participate in the identification parade.

Identification Parade

5 The identification parade took place on 24 March 1999, three days after the offence. In addition to the appellant, there were five other persons. These were the same five persons for each witness who took part. The identification of the appellant by the victim’s daughter and Darren Pritchard was admitted over objection and after evidence had been taken during the aborted trial on the voir dire. The objection was taken in reliance upon s137 of the Evidence Act 1995 which provides:

“In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”

The prejudice to which this section refers is not that the evidence merely tends to establish the Crown case; it means prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way; see R v BD (1997) 94 A CrimR 131 at 139 quoted with approval by McHugh J in Papakosmas v The Queen (1999) 196 CLR 297 para 91.

6 The basis of the objection was that the appellant was the only person in the line-up of six persons who matched the description of the offender as of aboriginal appearance with shoulder length hair.

7 When she was at the police station on 21 March 1999 the victim’s daughter did not give police a description of the assailant. On 9 April 1999 the victim’s daughter attended at the Orange Police Station and gave a statement in which, according to Judge Nield in his reasons for judgment on the admissibility of the identification evidence, she described Mrs Wymer’s assailant as:

“1. Adult; because she used the word man and not juvenile,
2. Male; because she used the word man,
3. Of Aboriginal or Torres Strait Island descent,
4. With dark skin (see Exhibit F).”
The victim’s daughter did not refer to the assailant’s hair.

8 On the voir dire she was called first. She acknowledged the truth and correctness of a statement she had made on 9 April 1999. Asked about the identification parade, she answered as follows:

“A. What was there about the man that you picked that told you that it was the man who had assaulted your mother? A. Well his face was familiar but he also had long hair but I don’t want to make a judgment just on the fact he had long hair alone so I asked the other men in the witness – in the parade whether or not they’d had a haircut and one said he had on Friday but that was before the assault, so I decided it was 7 then.
Q. So you relied upon his face being familiar and his hair being long? A. Yes and familiar to the …(not transcribable)..
Q. You said in your statement that he was of aboriginal and Torres Strait Island descent? A. Yes.
Q. And all the men, the 6 of them, were dark skinned? A. I think so, I can’t remember that far but I think they were.
Q. Did you rely upon his skin colouring? A. Well if they were all Torres Strait Islander descent then the skin colouring wouldn’t have mattered that much but it was part of his face, so.”

9 The victim’s daughter agreed that when she was at the police station on the afternoon of the robbery she was shown a video and a book of photographs. She said that neither she nor her mother could indicate from the video or the photographs in the book the person whom she saw committing the robbery.

10 The victim’s daughter gave the following evidence in cross-examination:

“ Q. So the long hair – when you were in the line up situation, the long hair that was something that was uppermost in your mind because your recollection of the person who committed this alleged offence on the Sunday afternoon outside the ATM was a person with long hair, is that right? A. Yes.
Q. So when you went in to the identification parade you were looking for someone with long hair, is that right? A. I was looking for the person I saw – like his face as well as the hair, it wasn’t just the hair.
Q. But I take it that the long hair was an important consideration in your mind, is that right? A. Yes.
Q. You told the police in your statement that you made on 9 April 1999 that the person was a man of aboriginal or Torres Strait Islander descent with dark skin, is that right? A. Yes.
Q. Of all the people who were lined up the person you chose, the number 7, his skin was the lightest wasn’t it? A. Still darker than mine.
Q. Darker than yours? A. Yep, that’s darker to me.
Q. But he wasn’t of dark skin was he, the person you chose? A. Compared to the others he wasn’t as dark.
Q. But he had long hair? A. Yeah but – his face as well as the hair.
Q. On the day of the robbery, that was 21 March 1999, did you observe this person who allegedly committed the robbery, did commit the robbery, did you observe that person for long. How long would you have been able to observe that person? A. One, two seconds when he looked at me.
Q. About two seconds when he looked at you? A. Yes.
Q. Were you standing next to your mother at that time? A. Yes, I might have been a bit in front of her.
Q. You were walking were you? A. Yes.
Q. Up towards Anson Street, is that right? A. Away from Anson Street.
Q. Away from Anson Street, sorry, away from Anson Street. Did you say you were ahead of your mother or behind your mother a little bit? A. Ahead.
Q. So when you mother was attacked you didn’t see the actual attack? A. No but I saw her yelling out.
Q. That attracted your attention? A. Yes, and I looked around and there was a man – my mum – had grabbed her from behind with his arms around her and she’d doubled over so – like ‘Oh my God what’s this’ and then like – I said like ‘hey’ or ‘oye’ or called out or something and started moving towards them to try and help and he looked at me and then he ran away.
Q. When you turned around – when your mother yelled out you turned around? A. Yes.
Q. Was the man’s back facing you or his side or his front? A. He was probably facing me but he had his head down.
Q. So you couldn’t see his face at that stage? A. No, not at that instant no.
Q. At some stage you saw his face for about two seconds? A. Yes he looked at me.
Q. He looked at you? A. Yes.”

11 Darren Pritchard was the next witness on the voir dire. He acknowledged as truthful two statements made, one on 22 March 1999 and the other on 7 April 1999. He gave the following evidence:

“Q. On 24 March 1999 when you were taken into a room and shown an array of persons, in your mind – you had given – stated to the police where you’d stated that the person you had saw was of aboriginal appearance. In your opinion were all people in that parade of aboriginal appearance? A. No there was a couple who were of like Fijian appearance.
HIS HONOUR: Q. Of? A. Fijian.
CROWN PROSECUTOR: Q. Because of that they were excluded from your mind for consideration? A. Yep, yes.
Q. Were there people of varying height, do you recall that? A. Yes there was a few short ones and then they varied in height.
Q. Did you notice anything about the length of their hair? A, Well there were only a couple with long, like shoulder length hair which one of them was Fijian and the other was the one which I picked.
Q. So other than the one you picked there was one who looked Fijian with longer hair? A. Yes.
Q. In relation to the number 7 that you chose, what was passing through your mind in terms of selection that person? A. Well he just stood out and like his shoulder length hair was – it matched and just his face.
HIS HONOUR: Q. So his face matched and his shoulder length hair matched? A. Yes.
Q. Anything else match? A. Well I don’t--
Q. Well height or body shape or skin colour or clothing -- A. Skin colour as well.
Q. What about his age? A. Well he looked to be about the same age as what I thought he was when I saw him the first time.
CROWN PROSECUTOR: Q. I want to ask you about the way that people were standing in the line up, whether they were leaning over or anything, was there anything about the way that anyone was standing? A. He was standing like different from the rest, the others were just like straight up like nothing was wrong or anything and he was sort of slouched a bit.”

12 He could not be positive if the police had shown him a book of photographs or not but he did not think he had seen a video showing faces of men. He was then questioned as follows:

“Q. You say that when you went in there you selected the person because of his shoulder length hair, is that right? A. Yep.
Q. And his face matched, is that right? A. Mm’mm.
HIS HONOUR. Q. And his age and his stance? A. Yes.
WALSH: Q. You say that his stance was different from the other people, is that right? A. Yep.
Q. But they were kind of in a relaxed sort of stance? A. Yep.
Q. And he wasn’t, this number 7 wasn’t, is that right? A. Mm’mm.
Q. So he stood out to you? A. Yep.
…..
Q. No doubt in the line up, the fact he had the long hair was one of the features that attracted you to looking at number 7, is that right? A. Mm’mm.
Q. That correct? A. Yep.
Q. Do you recall if the others had long hair? A. There was probably just – there was the one other who was of Fijian appearance.
Q. So you scouted him, put him out of your mind? A. Mm’mm.
Q. And you were attracted to the other person with the long hair, is that right? (no verbal reply)
Q. So is the situation that when you participated in this line up, given the appearance of the people before you, the 6 people before you and bearing in mind the description you’d given to the police, that really there was only one person who stood out and answered that description, that right? A. Yep, yes.
Q. And that was number 7 that you picked? A. Yes.
Q. Because the other didn’t fit the description given to the police? A. No.”

13 In his reasons for judgment, Judge Nield said:

”On 22 March 1999 Mrs Wymer, Mr Pritchard and Mr Murray attended at Orange Police Station, and each, independently of the other, made a statement to police. Mrs Wymer described her assailant as:
1. Adult,
2. Male,
3. Of Aboriginal Appearance,
4. Of solid build,
5. With dark skin,
6. With black shoulder length hair,
7. About 5’10” tall,
8. Wearing a red terry towelling hat, light coloured tee-shirt worn outside his trousers, and lose fitting long trousers (see Exhibit M1).
Mr Darren Pritchard described the man involved in the incident with Mrs Wymer as the man who he had seen earlier with Ricky Frail as:
1. Adult, about 30 years old,
2. Male,
3. Of Aboriginal appearance,
4. With dark coloured shoulder length hair,
5. With facial hair as though he had not shaved for a few days,
6. Wearing a red coloured baseball cap, light coloured T-shirt and dark coloured long pants (See Exhibit G1).
Mr Bradley Murray, who had been with Mr Pritchard, described the man who ‘nudged’, and that is the word he used in his statement, Mrs Wymer as the man who he had seen earlier with an indigenous woman as:
1. Adult in his 30’s,
2. Male,
3. Black, that is of Aboriginal descent,
4. Of big build,
5. Unshaven,
6. Wearing a red hat and long sleeved white shirt (see Exhibit L).”

14 A little further on, his Honour noted from the video recording of the identification parade that as at 24 March 1999 the accused was:

“1. An adult; I know from the transcript of the interview Exhibit K that his date of birth is 31 December 1967, so that he was aged 31 years, 2 months and some days.
2. Male,
3. Of Aboriginal descent,
4. With dark skin, although not as dark as some of the other five males in the identification parade,
5. Of solid build,
6. With dark shoulder length hair,
7. With facial hair as though he had not shaved for a few days.
8. I know from Exhibit K that he is the de facto husband of Ricky Frail.”

15 After referring to counsel’s submission based on s137 of the Evidence Act, Judge Nield said:

“Secondly, as to the question raised by the submission that the accused was the only person in the identification parade with shoulder length hair, the requirement of s137 of the Evidence Act is clear. If the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused, then I must refuse to admit the evidence. Thus I do not have any discretion. I must weigh the value of the evidence against the danger of unfair prejudice. I see the evidence of the identification parade as highly probative. Neither witness relied solely upon the length of the accused’s hair, and both witnesses identified the accused who was, in fact, the de facto husband of Ricky Frail. I do not see the method of obtaining the evidence as being unfairly prejudicial to the accused, although I acknowledge that the selection of the accused in a parade of men all having shoulder length hair would have been better. I reject the accused’s counsel’s submission that the identification parade was in effect a parade of one man. That this was not the case is confirmed by the fact that Mrs Wymer did not identify the accused as her assailant.
The identification parade and the selection of the accused as the complainant’s assailant are but pieces of a large amount of identification evidence. I do not see them as being unfairly prejudicial to the accused. I decline to prohibit the Crown Prosecutor from adducing the evidence of identification parade, and the identification of the accused by two of the witnesses as the complainant’s assailant.”

Appeal

16 The appellant relied on four grounds of appeal:

1. The learned trial Judge erred in admitting into evidence the identification evidence of the victim’s daughter.
2. The learned trial Judge erred in admitting into evidence the identification evidence of Darren Pritchard.
3. The learned trial Judge’s directions in relation to identification were inadequate.
4. The learned trial Judge erred in failing to warn the jury that the evidence of the identification of the appellant as the offender must be considered separately from the evidence that the offender had been earlier seen with a person named Ricky Frail.

Grounds 1 and 2

17 An identification parade, if properly carried out, provides the most reliable method of identification; see Alexander v The Queen (1981) 145 CLR 395 at 400. However, that reliability depends, in part, on ensuring that as far as possible those who parade are of the same age, height and general appearance as the suspect; compare Code D issued pursuant to the Police and Criminal Evidence Act 1984 (UK), Archbold Pleading Evidence and Practice 2001 particularly at 1335 para 14/51.

18 This Court viewed the video of the identification parade. The appellant was a man of aboriginal appearance with long hair. The only other person with long hair had it tied in a pony tail behind his head. The other four participants had short hair. They like the appellant, and the other man with the pony tail, were dark skinned. None of them had an appearance similar to the appellant.

19 The learned trial Judge referred to the attendance of Darren Pritchard at the Orange Police Station on 22 March 2000. Darren Pritchard described the man in the incident, inter alia, as being of aboriginal appearance with dark coloured shoulder length hair. When giving evidence on the voir dire he put aside the other person with long hair because he “looked Fijian” and agreed that in the line up the fact that the appellant had the long hair “was one of the features that attracted” him to look at him.

20 In short, so far as this witness was concerned, there was no one else in the line up who answered the two significant parts of his identification, namely aboriginal appearance and shoulder length dark hair.

21 Probative value is defined in Pt 1 of the Dictionary to the Evidence Act as the extent to which the evidence could rationally effect the assessment of the probability of the existence of a fact in issue. In my opinion, the probative value of Darren Pritchard’s identification of the appellant during the identification parade was low and outweighed by the danger of unfair prejudice to the appellant. Both sides of the scale were infected by the inherent tendency at the identification parade for Darren Pritchard to select the only person who answered two important elements in the description he had given. In my opinion, pursuant to s137 this evidence should not have been admitted.

22 The evidence of identification at the identification parade given by the victim’s daughter differed in that as the trial Judge observed she had not given the police a description of the assailant when she was at the police station on 21 March 1999. However, in giving evidence on the voir dire when asked what there was about the man she had picked that told her that it was the man who had assaulted her mother she answered:

“Well his face was familiar but he also had long hair but I don’t want to make a judgment just on the fact he had long hair alone so I asked the other men in the witness – in the parade whether or not they’d had a hair cut and one said he had on Friday. But that was before the assault, so I decided it was 7 then.”

23 Undoubtedly a feature of the identification was the assailant’s long hair. She had also said he was of aboriginal and Torres Strait Islander descent. She agreed that in the line up situation the long hair was something that was uppermost in her mind because he recollection of the person who committed the offence was a person with long hair. It was not just the hair but the long hair that was an important consideration in her mind.

24 Again, for reasons that I have given concerning the evidence of Darren Pritchard, I think the evidence of identification at the identification parade by the victim’s daughter was of low probative value outweighed by the danger of unfair prejudice to the appellant. In my opinion, pursuant to s137 this evidence should have been rejected.

Ground 3

25 During the course of summing up on the identification evidence the learned trial Judge said:

“So, members of the jury, it may well be when you consider the evidentiary material that the identification parade is of little value to you. However, bear in mind that the people who identified the accused in the identification parade, Miss Wymer and Mr Darren Pritchard, said that it was not only the length of the hair which was the feature relied upon in the identification. Members of the jury, the fact is that both of them chose a person in the identification parade who had an association with Miss Ricky Frail and that is one of the criteria relied upon by the Crown as identifying the accused as the man who was involved in the incident with Mrs Wymer.”

26 This passage is significant in that it acknowledges that it was open to the jury to conclude that the identification parade evidence was of little value. However, contrary to the submissions made on behalf of the appellant, I do not think that separately it had the effect of undermining appropriate warnings earlier given by the trial Judge in relation to the identification. Nor do I think it involved any circularity in using the evidence that the offender was with Ricky Frail to bolster the identification. Had the identification parade been admissible it seems to me entirely appropriate that the trial Judge summed up in a way which brought to the jury’s attention various matters which the jury might have thought identified the appellant as the assailant. The point was not taken as a basis for further direction. No complaint was made about this part of the summing up. In my opinion, leave to argue it should be refused under Rule 4 of the Criminal Appeal Rules.

Ground 4

27 It was submitted on behalf of the appellant that not only should the direction criticised in ground 3 not have been given but that a contrary direction should have been given. The trial Judge erred in not directing the jury that the identification evidence had to be considered separately from the evidence connecting the offender with Ricky Frail. This was said to be so because the two strands did not rise independently. As I understand it the suggestion was that the appellant was only in the identification parade because of his association with Ricky Frail. For reasons already given I do not think this ground has any substance at all. The jury was perfectly entitled to take account of the identification evidence, if otherwise admissible, together with the appellant’s association with Ricky Frail in determining whether or not the appellant was the assailant. Again no re-direction of the sort suggested was asked for at the trial. Leave should be refused under Rule 4.

Conclusion

28 In my opinion, the admission of the identification evidence of the victim’s daughter and Darren Pritchard resulted in a substantial miscarriage of justice. Accordingly, I propose the following orders:

1. Appeal allowed;
2. Quash the conviction;
3. Order a new trial .

I agree with Sheller JA.

I agree with the orders proposed by Sheller JA and with his Honour’s reasons.

******