R v Gardner

[2001] NSWCCA 381

Reported Decision: 123 A Crim R 439

New South Wales

Court of Criminal Appeal

CITATION:	R v GARDNER [2001] NSWCCA 381
FILE NUMBER(S):	CCA 60764/00
HEARING DATE(S):	29 August 2001
JUDGMENT DATE:	25 September 2001
PARTIES :	Guy Gardner - Appellant Crown - Respondent
JUDGMENT OF:	Sheller JA at 1; Sully J at 26; Hulme J at 27

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/21/0301
LOWER COURT JUDICIAL OFFICER :	Armitage DCJ

COUNSEL :	G F Jauncey - Appellant R A Hulme - Crown
SOLICITORS:	Aboriginal Legal Service - Appellant S E O'Connor - Crown
CATCHWORDS:	Criminal Practice and Procedure - Admission of Evidence - whether evidence of police officers that they recognised person in photographs as the accused was relevant under s55 Evidence Act - application of Smith v The Queen (2001) HCA 50 - whether trial Judge corrected error on part of prosecutor in commenting on the accused's mother's failure to give evidence contrary to s20(3) Evidence Act - whether process of examining accused from a similar angle to that shown in photographs of the crime contravened s137 Evidence Act
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	R v Smith (1999) 47 NSWLR 419 Smith v The Queen (2001) HCA 50 Alexander v The Queen (1981) 145 CLR 395 R v Goodall [1982] VR 33 R v Palmer [1981] 1 NSWLR 209 Morrison v The Queen (unreported) NSWCCA 30 November 1995 R v Tipene (unreported) New Zealand CA 30 May 2001 R v Griffith (1995) 79 A CrimR 125 R v Cook (1998) 130 NTR 28 R v Kirby [2000] NSWCCA 330 Bulejcik (1995) 185 CLR 375 Sorby (1983) 153 CLR 281 Lockyer (1996) 89 A CrimR 457 Singh-Bal (1997) 92 A CrimR 397
DECISION:	1. Appeal allowed; 2. Quash the verdict; 3. Order a new trial.

IN THE COURT OF

CRIMINAL APPEAL

60764/00

Tuesday, 25 September 2001

Regina v Guy GARDNER

The appellant was convicted of robbery. Part of the Crown evidence at the trial consisted of photographs taken by a bank security camera at the time of the robbery. The appellant objected to three aspects of the proceedings. First, the Crown called three police officers to give evidence that they were previously acquainted with the appellant, and that they had separately nominated the appellant as one of the persons in these photographs. The appellant objected to the police officers' evidence, but, following a voir dire, the trial Judge admitted the evidence. Second, in the course of summing up to the jury, the Crown Prosecutor made a comment on the failure of the appellant's mother to give evidence which contravened s20(3) of the Evidence Act 1995. Third, at the invitation of his counsel, for the benefit of the jury, the appellant displayed the same profile as appeared in the photographs.

Held:

per Sheller JA, Sully J and Hulme J agreeing:

1. Following the decision in Smith v The Queen (2001) HCA 50, the evidence of the police officers as to their recognition of the person in the photographs as the appellant did not pass the relevance test in s55 of the Evidence Act. The police officers were in no better a position to make a comparison between the appellant and the person in the photographs than the jurors.

2. The error on the part of the Crown Prosecutor was adequately dealt with by the trial Judge in his summing up to the jury.

3. The procedure of examining the appellant from a similar angle to that shown in the photographs had an obvious probative value, which outweighed the risk of unfair prejudice. R v Kirby [2000] NSWCCA 330, considered.

ORDERS

1. Appeal allowed;

2. Quash the verdict;

3. Order a new trial.

******

THE COURT OF
CRIMINAL APPEAL

60764/00

Tuesday, 25 September 2001

Judgment

1 SHELLER JA:

On 29 May 2000 the appellant, Guy Gardner, was indicted before his Honour Judge Armitage QC on four counts of robbery alleged to have taken place at the Westpac Bank at Baulkham Hills on 14 July 1999. The appellant pleaded not guilty. Part of the Crown evidence at his trial consisted of eight photographs taken by a bank security camera at the scene of the robberies. The Crown called three police officers who said they were previously acquainted with the appellant and who separately nominated the appellant as one of the persons in the photographs. The appellant's counsel objected to this evidence. A hearing on the voir dire took place. The trial Judge admitted the evidence of the three police officers and gave reasons for doing so. His Honour referred to this Court's decision in R v Smith (1999) 47 NSWLR 419. The Court held in that case that evidence given by police officers who had viewed still photographs taken by a bank security camera and identified an accused from the photographs as a person known to them was not "evidence of an opinion" but was direct evidence that the person shown in the photographs was the accused; as such it was not excluded by s76 of the Evidence Act 1995.

2 The appellant gave evidence of an alibi and denied any part in the robberies. On the invitation of his counsel he came out of the witness box and stood in front of the jury. He stood back to back with an instructing clerk and turned so that the jury could see his right profile. He said that since he was young he had a tattoo under his left eye. On 2 June 2000 the jury returned with a verdict of guilty on all counts. The appellant appeals against his conviction.

3 On 21 June 2001 the High Court made orders setting aside the order of the Court of Criminal Appeal in R v Smith and in place directing that there be a new trial of the appellant. The reasons for judgment were handed down on 16 August 2001; Smith v The Queen (2001) HCA 50. The majority judgment was that of Gleeson CJ, Gaudron, Gummow and Hayne JJ. Their Honours held that in that case the evidence of the police was irrelevant and should not have been received. No question of admissibility had to be considered. In reliance in part on that decision the appellant filed amended grounds of appeal against his conviction arguing that the High Court decision meant that the evidence of the police officers was irrelevant and should not have been received.

4 When the appeal was called on the Crown advanced reasons designed to distinguish the present case from Smith. In order to understand the argument it is necessary to examine in some detail both the majority decision to which I have referred and the reasons for judgment of Kirby J. Kirby J held, contrary to the majority, that the police evidence in that case was relevant but agreed in the order of the Court on the basis that the evidence fell within the opinion rule and no exception to the opinion rule had been established. In para 6 the majority of the Court acknowledged that no attention was given to the question of the relevance of the evidence of the police officers in the arguments advanced at trial or on appeal to the Court of Criminal Appeal. Their Honours said that the question must always be asked and answered and that no discretion fell to be exercised. Irrelevant evidence may not be received. It can be said immediately therefore that the fact, if it be the fact, that the evidence of the police officers in the present case was not objected to as irrelevant is of no moment in deciding how this appeal should be disposed of.

5 After referring to Pt 3.1 of the Evidence Act and s55 in particular and posing the question of whether the evidence, if it were accepted, could rationally affect (directly or indirectly) the assessment by the tribunal of fact, here the jury, of the probability of the existence of a fact in issue in the proceeding their Honours said:

"8 The issues which arose on the appellant's trial were very narrow. There being no dispute that there had been a robbery, the only disputed fact was whether the appellant is depicted in the bank photographs. It is important to notice that the question is framed in the present, not the past, tense. Having regard to the fact that the photographs which were tendered in evidence at trial depicted the occurrence of the robbery with which the appellant was charged, the question for the jury was whether they were satisfied, to the requisite standard, that the person then standing trial before them is shown in those photographs.

9 The only evidence led against the appellant in relation to that disputed fact was the evidence of the two police officers and the evidence that demonstrated that the photographs which were tendered in evidence had been taken by the bank's security cameras during the robbery. Neither police officer suggested that he had any basis for concluding that it is the appellant depicted in the bank photographs other than the knowledge that he had gained of the appellant's physical appearance during those earlier encounters and whatever was revealed to a person who looked at the photographs that were produced in evidence. There was no suggestion that the physical appearance of the appellant had changed materially between the time when the photographs were taken and the time of the trial, or that the police, by reason of their previous observations of the appellant, were at some advantage in recognising the person in the photographs. It was acknowledged by counsel, in the course of argument in this court, that, by the time the evidence had concluded, the jurors had probably spent more time in the presence of the appellant than had the police witnesses before they gave their evidence. The police witnesses were in no better position to make a comparison between the appellant and the person in the photographs than the jurors or, for that matter, some member of the public who had been sitting in court observing the proceedings. If such a member of the public had been called as a witness, the same question of relevance would have arisen. Thus, not only was the issue that was raised a very narrow issue, the data available to the jury for its resolution was no different in any significant way from the data upon which the police officers based their asserted conclusion. The police officers' conclusions and the jury's conclusion both depended upon combining their observation of the appellant's appearance with their observation of the photographs. (Having regard to the quality of the photographs we saw, it is not clear that the jury could not have compared them with the accused.)

10 The question of the relevance of the evidence of the police officers may be approached in this way. The fact in issue was, as we have earlier said, 'Is the person standing trial the person who is depicted at the right-hand side of some of the photographs tendered in evidence?' Is an assertion, in evidence, by a witness that he now recognises, or has previously recognised, the person who is depicted in those photographs as the accused, relevant evidence? That is, in the language of s55 of the Evidence Act, could that evidence, if accepted, rationally affect the assessment by the jury of the probability that it is the person standing trial who is depicted in the photographs?

11 Because the witness's assertion of identity was founded on material no different from the material available to the jury from its own observation, the witness's assertion that he recognised the appellant is not evidence that could rationally affect the assessment by the jury of the question we have identified. 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. The process of reasoning from one fact (the depiction of a man in the security photographs) taken with another fact (the observed appearance of the accused) to the conclusion (that one is the depiction of the other) is neither assisted, nor hindered, by knowing that some other person has, or has not, arrived at that conclusion. Indeed, if the assessment of probability is affected by that knowledge, it is not by any process of reasoning, but by the decision-maker permitting substitution of the view of another, for the decision-maker's own conclusion.

12 In this case the evidence of the police was irrelevant and should not have been received. No question of admissibility had to be considered.

13 This is not to say that it will never be relevant for a witness to give evidence that the witness recognises who is depicted in a photograph. The obvious case in which that will be relevant is where the witness deposes to having identified someone from a photograph, or collection of photographs, shown to the witness and the identity of the person depicted is proved in some other way: Alexander v The Queen (1981) 145 CLR 395. Difficulties may arise, however, when the photograph which is used for identification and is tendered in evidence is, as was the case here, a photograph taken of an incident which is the subject-matter of the proceeding. Even in such a case, a witness's evidence of recognition of the person depicted may be relevant.

14 Sometimes the facts in issue will extend beyond the narrow question whether the accused is the person depicted in the photograph. In R vGoodall [1982] VR 33, the question included whether the accused owned a jacket of the kind that the offender depicted in security photographs of a robbery was shown to be wearing. A jacket, which was tendered in evidence, had been found with other incriminating items. Two police officers gave evidence that they had seen the accused wearing this kind of jacket before the robbery. They gave further evidence that the man who was depicted in the security photograph was the accused, and that he was wearing a jacket of the kind they had seen him wearing before the robbery. The evidence was, therefore, relevant to link the accused to the jacket. It went beyond the bare assertion of recognition of the person on trial as the person shown in the photograph.

15 In other cases, the evidence of identification will be relevant because it goes to an issue about the presence or absence of some identifying feature other than one apparent from observing the accused on trial and the photograph which is said to depict the accused. Thus, if it is suggested that the appearance of the accused, at trial, differs in some significant way from the accused's appearance at the time of the offence, evidence from someone who knew how the accused looked at the time of the offence, that the picture depicted the accused as he or she appeared at that time, would not be irrelevant: R v Palmer [1981] 1 NSWLR 209. Or if it is suggested that there is some distinctive feature revealed by the photographs (as, for example, a manner of walking) which would not be apparent to the jury in court, evidence both of that fact and the witness's conclusion of identity would not be irrelevant cf Morrison v The Queen unreported, Court of Criminal Appeal of New South Wales, 30 November 1995. Similarly, if, as was the case in R v Tipene unreported, Court of Appeal of New Zealand, 30 May 2001, there is an issue whether photographs of different incidents depict the same person, evidence given about the identity of the person depicted may not be irrelevant.

16 Of course in any such case, further questions of admissibility would then arise. Those questions would very likely include questions about the application of the opinion rule (s76) and the questions presented by the general discretion to exclude evidence under s135, and the direction, in s137, to exclude prejudicial evidence. It is, however, not necessary to consider those questions in this matter. Answers to them may depend, in part, upon the precise nature and form of the evidence."

6 From the passage quoted it should be noted that having regard to the quality of the photographs their Honours saw, it was not clear that the jury could not have compared them with the accused. In para 11 their Honours said that the witness's assertion of identity was founded on material no different from the material available to the jury from its own observation. In para 14 their Honours gave the example of the admissibility of the evidence of police officers that the man who was depicted in the security photograph was the accused and that he was wearing a jacket of the kind they had seen him wearing before the robbery. That evidence was, their Honours said, relevant to link the accused to the jacket and went beyond bare assertion of recognition of the person on trial as the person shown in the photograph. In para 15 their Honours said that if it is suggested that the appearance of the accused, at trial, differs in some significant way from the accused's appearance at the time of the offence, evidence from someone who knew how the accused looked at the time of the offence, that the picture depicted the accused as he or she appeared at that time, would not be irrelevant. Essential to relevance and hence admissibility were questions whether the police witnesses by reason of their previous observations of the appellant were at an advantage in recognising the person in the photographs or were in a better position to make a comparison between the appellant and the person in the photographs than the jurors. See R v Griffith (1995) 79 A CrimR 125 at 127-8. See also R v Cook (1998) 130 NTR 28, particularly at 30-33.

7 The majority in the High Court referred uncritically to the decision of this Court in R v Palmer. In that case, two of the charges laid against the appellant related to bank robberies, one at East Hills on 25 September 1978 and the other at Oatley on 17 November 1978. Street CJ, in whose judgment Glass JA and Lusher J agreed, said at 210:

"On each of the armed robberies the offenders were photographed by security cameras within the bank's premises. In relation to the first one at East Hills, three photographs of a man in a tracksuit with a stocking over his head, taken by the security camera, were tendered and admitted without objection. The Crown called evidence from a Mrs Delaney, who was the wife of a second man who was involved in this particular armed robbery and in the course of her evidence she was shown these photographs."

8 On the occasion of a second armed robbery there were three photographs taken by the bank's security camera. They were admitted into evidence without objection. It appears that the man photographed had something over his head; see 212A. One of the photographs had been enlarged and a poster had been prepared for display at banks inviting any person who recognised the man photographed to inform the bank manager or the local police. Street CJ said at 211:

"A Mrs Furlong saw this poster and then in due course she and her husband communicated with the manager of the bank where they saw it. The evidence from them, which was proceeded by evidence of a comparatively formal nature from the bank manager himself, was as follows: Mrs Furlong, who gave her address as Sulman Road, Cabramatta, was shown the poster in the witness box and identified it as the poster she had seen at the bank before she spoke to the bank manager."

9 She was asked whether she recognised the man appearing in the exhibit. She said yes. She was asked where she had seen him previously and said "Across the road from us at No 8 Sulman Road, Cabramatta." Asked when she first saw him she said approximately the end of October or November, the first week in November 1978. She saw him at or near the premises until about the middle of January. She next saw him on about 22 February (1979) when he had grown a beard and his hair was collar length.

10 Mr Furlong gave similar evidence that in October 1978 he was clean-shaven, hair was very presentable. In February he noticed for the first time that he had a moustache and beard. A Mrs Johnston who lived in the same house as the appellant said that when she was living with him he did not have a moustache or a beard. After he came back in March he had had a tattoo put on his face. His hair was longer and he had a moustache and beard. Mrs Johnston was shown three photographs taken by the security camera in the Oatley bank and the poster. She had noticed the photograph in the bank after the appellant had left her place in January. She said the poster was the appellant and recognised one of the men in the photographs as the appellant. Mrs Johnston had had an intimate relationship with the appellant.

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."

12 From Kirby J's reasons for judgment can be gleaned some idea of the quality of the photographs admitted in evidence in Smith v The Queen. The face of the person alleged to be the appellant was shaded by a hood. The photographs were black and white. Kirby J said that in most of the photographs the features of the person alleged to be the appellant were partially hidden by a hood pulled over the head. His Honour observed:

"42 ..... It is not unusual for those who participate in crimes of this character to attempt to disguise their features. A jury, invited to identify the participants as the accused from photographs with such impediments, might, quite properly, hesitate to do so solely on the basis of their own observations of the photographs as compared to the appearance of the accused before them. The jury's hesitation in this case is demonstrated by their request for a magnifying glass and the two questions they put to the trial judge. Members of a jury watch a person such as the appellant (especially where, as here, that person gives no evidence) sitting immobile in the courtroom. The police witnesses had repeatedly viewed the appellant in daylight. They had seen him in motion. They had observed him from different angles. They had had the opportunity to view him engaged in varying and more natural facial movements."

13 These descriptions of the photographs and the decision of the majority lead to the conclusion that the fact that the appellant when photographed was wearing some sort of hood and matters such as those referred to by Kirby J are not significant when determining whether or not the police witnesses were in any better position to make a comparison between the appellant and the person in the photographs than the jurors or, for that matter, some member of the public who had been sitting in court observing the proceedings.

14 In the present case the first photograph, exhibit B, shows a person alleged to be the appellant dressed in a tracksuit with a scarf or high collar. The face is seen from right profile, the right eye closed and the mouth open and slightly out of focus. The person is wearing a dark baseball cap which hides the forehead and back of the head. The second photograph shows a person similarly dressed leaning more forward, again from the right profile with the right eye closed and the mouth open wearing a baseball cap with the same effect and again slightly out of focus. The next photograph shows a person from the rear. It is out of focus, the neck and the right ear is visible, some hair and the back of a cap. The next photograph shows part of the torso of a person from the front, the footwear is visible as is the person's left hand by the side. No part of the face is visible. The next photograph is of someone who clearly is not the same person as the first two photographs to which I referred. The same can be said of the next photograph. The next photograph is a larger photograph showing the persons in the earlier photographs, the left one being the same person as in the first two photographs, bending down away from the camera. One can see some part of the right profile of the face under the baseball cap but not the eye or mouth. The next large photograph shows that person again from a right profile. The profile of the face is out of focus. It is hard to see whether the eye is open or closed, the mouth appears to be slightly open.

15 The presence of the baseball cap and the quality of the photographs, particularly the want of proper focus, meant that the photographs might have been within the category Kirby J described as carrying such impediments that a jury, invited to identify the participant as the accused from them, might quite properly hesitate to do so solely on the basis of their own observations of the photographs as compared to the appearance of the accused before them. However, this rises no higher than the comment of the majority in Smith v The Queen, namely that having regard to the quality of the photographs it is not clear that the jury could not have compared them with the accused. This being so, the Crown's attempt to distinguish Smith v The Queen by suggesting that the appearance of the accused at trial differed in some significant way from his appearance at the time of the offence when he was wearing a cap, must fail. That the photographs were slightly out of focus is not a point of distinction.

16 A particular problem in this case is that because the evidence of the police witnesses was not objected to on grounds of relevance, the trial Judge gave no consideration to such questions as whether the police witnesses at the time their evidence was tendered were in a better position to make a comparison between the appellant and the person in the photographs than the jurors or for any other reason were at some advantage in recognising the person in the photographs by reason of his dress. Without the assistance of the trial Judge's views on these matters it seems to me that this Court can do no more than conclude that in relying on the decision of this Court in Smith his Honour failed, understandably since no objection was taken, to consider the relevance of the evidence of the police witnesses.

Grounds of appeal

"1. His Honour erred in admitting the evidence of identification of the appellant as being one of the persons in the security camera photographs by Police Officers Shaun Dempsey, Stephen Dempsey and Patrick Gerard Sharkey.
2. His Honour erred in failing to exclude the evidence pursuant to s137 of the Evidence Act.

3. His Honour erred in not discharging the jury after the Crown made comment in contravention of s20(3) of the Evidence Act.

4. His Honour erred in directing the jury as to the failure of the appellant to provide a profile view to the jury and to put on the jacket and cap."

Ground 1

17 This ground must succeed. The trial Judge should have determined whether the evidence of the police witnesses was irrelevant and inadmissible. It follows from this that there must be a new trial.

Ground 2

18 This question does not arise.

Ground 3

19 In the course of summing up to the jury the Crown Prosecutor commented on the failure by the accused to call various witnesses and specifically referred to the mother of the accused. She said that those witnesses had not been called to corroborate his alibi. In so doing the Crown Prosecutor contravened the exception to s20(3) of the Evidence Act which provides that the judge or any party:

"(other than the prosecutor) may comment on a failure to give evidence by a person who, at the time of the failure, was:
.....
(b) a parent .....of the defendant."

20 The trial Judge pointed out to the jury that the Crown Prosecutor was not entitled to refer to the fact that the accused's mother had not been called as a witness because of the provision in the Evidence Act. His Honour went on:

"However, I, as the presiding judge am entitled to refer to that matter and what I say to you about it is this, there may be many reasons why the mother was not called. An obvious one is that she may have no recollection of the events of the morning in question. Nevertheless, you should not speculate as to why she was not called."

21 In my opinion, the Crown Prosecutor's comment summarised in the written submissions as being words to the effect, referring to the mother, "you might think she'd come along", were adequately dealt with by the trial Judge and did not call for the discharge of the jury.

Ground 4

22 When the appellant was arrested certain clothing was seized from his premises. This clothing was an exhibit at the trial. In the course of his summing up the trial Judge said:

"Mr Jauncey dealt with the estimate of height given by one of the detectives. That is, I think the estimate was about six feet. Clearly Mr Jauncey says his client is nowhere near six feet tall. Mr Jauncey then pointed out that his client voluntarily took part in the record of interview. He was not obliged to do that but he elected to do it. Mr Jauncey put to you that has never been suggested by the defence that the police were out to get Guy Gardner. What the defence says is that there is a pre-disposition. He puts to you that the police are the same as anyone else. They are professional witnesses and they are eager to please. Mr Jauncey put to you that his client had not tried to hide and has displayed himself in this court room from many angles. Well, members of the jury, it is not as I say for me to buy into the facts at all. The only reason I intend saying something more to you about that is because, of course, it was the Crown Prosecutor who addressed first. She had no opportunity of responding to that submission. Obviously someone has to address first and no one of course is complaining about the rules as they exist. It is perfectly proper that the Crown Prosecutor should address first. That is what she did but she cannot respond to that. It would seem to me that no doubt the Crown would put to you that there is, of course, nowhere to hide in this court room but if the accused really wanted you to have a good look at him from the side that matters, that is the right profile, that is the side shown in the photograph exhibit B, there was nothing at all to stop him from moving onto the floor of the court, directly in front of the jury box, nothing to stop him if he wanted to putting on the trousers and the jacket that are in evidence, putting on a cap and standing in the very same position relative to you as the person in exhibit B is standing relative to the camera. Nothing to stop him doing that but of course he has not. I would imagine that the Crown would have put something along those lines to you."

23 In R v Kirby [2000] NSWCCA 330 Wood CJ at CL, who gave reasons for judgment with which Beazley JA and O'Keefe J agreed, referred to the fact that in the course of cross-examination the appellant was asked to place on his head an Akubra hat, that had been found as his house, being a hat that he agreed was similar to the hat seen in one of those stills. After he had put it on he was asked to put it back on to turn his head sideways and to pull the brim down a bit. This, of course, all took place as he was giving evidence. The Chief Judge said at para 46:

"46 In the present case the jury were not being asked to make an identification reliant upon their own memories. They were doing no more than they inevitably would have done once the security photographs were tendered - ie, to examine them against the man in the dock, and against the various items of clothing and otherwise that had been found at his home and tendered in evidence. The difference is that they were making a comparison of evidence, not an identification from their own memories.

47 The demonstration by a witness of his or her personal appearance, or of the sound of his or her voice, or the provision of a sample of handwriting, and the wearing of a piece of clothing connected with a crime to see if it fits, are commonplace events and entirely unexceptional. They do not require any independent proof ( Bulejcik (1995) 185 CLR 375 at 380-381) and their purpose is to enable a jury or other trier of fact to make their own comparison with other physical evidence before the Court: Sorby (1983) 153 CLR 281 at 292. The permissibility of such a procedure was expressly recognised by Toohey and Gaudron JJ in Bulejcik at 395, where their Honours said:
'Where two voices are being heard side by side, as occurred in the present case, the concern is not with familiarity or distinctiveness but with whether the quality and quantity of the material is sufficient to enable a useful comparison to be made. By way of analogy, asking a jury to compare a photograph of an accused with a security camera picture of the perpetrator of a robbery involves quite different considerations from asking a witness whether the accused is the person they remember seeing at the robbery.'


48 So much was conceded by counsel, whose submission rested, essentially, upon the proposition that the risk of unfair prejudice to the appellant, of a procedure requiring him to wear a hat while the jury had the security stills, outweighed the probative value attaching to it, thereby attracting its exclusion under s137 Evidence Act . This was said to arise because the exercise risked reminding the jury that the man wearing the hat in the dock was the offender, or subliminally reinforcing that contention.

49 For the reasons mentioned, and bearing in mind that it was both inevitable and necessary for the jury to pay close attention to the security videos, to the stills taken from them, to the photograph of the appellant taken within days of the offence, and to the descriptions given of the second offender by the State Rail staff and by the arresting officer, I am not persuaded that the procedure was unfair. It made sense, if a comparison was to be made, for the appellant to wear an Akubra hat of the kind worn by the offender, since that was how that person appeared in the stills and videos.

50 The comparison evidence, and the procedure had an obvious probative value, and the case was not one in which there was, to my mind, any risk of the jury giving the exercise an unwarranted weight, or of misusing it, or of being led into a process of evaluation or reasoning that was unjustified, and hence of a kind that would attract s137 of the Evidence Act; Lockyer ( 1996) 89 A CrimR 457 and Singh-Bal (1997) 92 A CrimR 397; and see also Blick. In particular, it is impossible to accept the proposition that the jury ever lost sight of the fact that it was the Crown contention that the appellant was the second offender, or that the comparison exercise reminded them of that, or reinforced it in their minds."

24 In my opinion, there was no impropriety in the trial Judge's directions to the jury of which complaint is made. This ground of appeal fails.

Conclusion

25 In my opinion, the following orders should be made:

1. Appeal allowed;

2. Quash the verdict;

3. Order a new trial.

26 SULLY J:

I agree with Sheller JA.

I agree with the orders proposed by Sheller JA. I agree also with his Honour's reasons except those relating to the fourth ground. Given my other conclusions, I do not find it necessary to consider this ground.

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