R v Griffith

[1995] QCA 159

IN THE COURT OF APPEAL	[1995] QCA 159
SUPREME COURT OF QUEENSLAND

C.A. No. 474 of 1994.

Brisbane

[R v. Griffith]

T H E Q U E E N

v.

BRETT RANDALL GRIFFITH

Appellant

____________________________________________________________________

Macrossan C.J.
Pincus J.A.

Davies J.A.

____________________________________________________________________

Judgment delivered 05/05/1995

Reasons for Judgment of the Court

____________________________________________________________________

APPEAL ALLOWED. SET ASIDE THE FOUR CONVICTIONS. ORDER A NEW
TRIAL ON ALL COUNTS.
_____________________________________________________________________

CATCHWORDS: CRIMINAL LAW - conviction - admissibility of opinion evidence as to identification - non-expert witnesses - effect of summing-up on jury's determination - whether prejudice to defence - whether miscarriage of justice. Palmer [1981] 1 N.S.W.L.R. 209

Smith (1984) 33 S.A.S.R. 558 Murphy (1989) 167 C.L.R. 94

Counsel:	Mr D Lynch for the appellant. Mr P Callaghan for the respondent.
Solicitors:	Legal Aid Office for the appellant. Director of Prosecutions for the respondent.
Hearing date:	3 February 1995.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 05/05/1995

This is an appeal against conviction. The applicant was convicted of escaping from custody, unlawful use of a motor vehicle for the purpose of facilitating commission of an indictable offence (two counts), and armed robbery in company. Although the notice of appeal relates to all four offences, the argument focused upon the most serious, the conviction of armed robbery in company.

The Crown case was that the appellant, who was then serving a sentence of imprisonment at Numinbah Correctional Centre, was given the keys of a 4-wheel drive vehicle by a prison officer and used it to escape from the Centre and commit, with others, an armed robbery at the Isle of Capri TAB. There were two charges of unlawful use of a motor vehicle, because apart from the 4-wheel drive vehicle, the appellant, so the Crown alleged, was involved in the theft of a second vehicle which was used as a get-away car.

There was no doubt that a robbery was committed and the Crown relied upon the evidence of one McKeaton, a fellow prison inmate of the appellant, with respect to the details of it. McKeaton said that he and two other inmates of the prison took part in the robbery. He declined to identify the other two. McKeaton explained that the three left the prison in a Toyota Hi-lux utility to which one of the co-offenders had the keys. A gun used in the robbery had been supplied, he said by a visitor to the prison, together with some ammunition. McKeaton denied that the appellant was one of the robbers, but admitted that (although his co-offenders were both prisoners) he would make the same denial with respect to any other named inmate of the prison.

Apart from some police identification evidence discussed below, the Crown case that the appellant was one of McKeaton's two co-offenders had some strength. A number of persons who saw the offence committed gave evidence about the appearance of the offenders which was, on the whole, consistent with the appellant being involved. There was evidence from two witnesses, Janosevic and Lingard, of a fairly close association between McKeaton and the appellant, as prisoners. Lingard said that there was an occasion, when what was described as the "inmates committee" was asked to suggest names to him of "stable, long term inmates...suitable for transfer to a low [security] open environment". Shortly after that, according to Lingard, McKeaton came to him and recommended that the appellant and another named inmate, who were at another institution at the time, be selected. But more importantly, it was established that the appellant was issued with keys to the vehicle used in the robbery, on the morning of the day on which it took place. The purpose of issuing the keys was to enable the appellant to "do the garbage run". The evidence was to the effect that the keys to the vehicle were issued to the appellant for his use only. There was no evidence, nor any suggestion in the evidence, that the appellant handed the keys on to any other person.

The principal focus of the appellant's attack upon his robbery conviction, together with the associated motor vehicle offences, was on the admission of certain identification evidence. One of the offenders, said by the Crown to be the appellant, was photographed by a security camera during the progress of the robbery. Use of the relevant photographs for identification was hampered by the presence of a stocking over the face of the person photographed, which distorted his facial features. The trial was apparently conducted on the assumption, no doubt a correct one, that there was no means of requiring the appellant to give the court an opportunity to observe him, in court, in a similar condition. Mr Lynch for the appellant argued that the trial judge should not have admitted evidence of two police officers, Fitzjohn and Costello, who gave it as their opinion that the appellant was the person depicted in a particular photograph taken by the security camera.

This evidence was objected to at the trial, mainly on the basis that the stocking so disguised the person depicted that the identification could be of no value. The method by which this objection was put was by counsel adopting an argument which had been advanced on behalf of the appellant at a previous aborted trial. Some of the remarks then made suggested that the police identification evidence was thought to be of considerable weight- for example, counsel said:

"As I understand it, I think my friend probably would concede that if that [police identification] evidence isn't led the Crown case must fail. There is a number of other circumstances but it's not sufficient to found a verdict of guilty, so that's why it's obviously of great importance."

In this Court, other grounds of objection were put forward. It was argued that the judge should, in his discretion, have excluded the police identification evidence because in the course of it the witnesses gave details of their contacts with the appellant which disclosed, at least implicitly, a substantial history of criminal activity. Then it was said that the evidence in question was merely opinion about a matter on which the jury was in at least as good a position to come to a conclusion as the police witnesses. During the course of argument on this last point reference was made to the possibility that if such evidence were allowed, any number of witnesses, including people who had observed the appellant in court but had no other connection with the case, could presumably be called on one side or the other to say whether they thought the relevant photograph of a man with a stocking over his face resembled the appellant.

Counsel referred us to authorities in which evidence of this kind was considered, the last being Smith (1983) 33 S.A.S.R. 558; there, Mitchell ACJ discussed two earlier similar cases. The authors of the Australian edition of Cross on Evidence deal with the first of these cases, Palmer [1981] N.S.W.L.R. 209 as an example of non-expert opinion: see para. 29095. Placing the matter in that category is useful, because it brings to mind a principle which has sometimes been applied in considering the admission of opinion evidence, namely that non-expert witnesses are not ordinarily allowed to give opinions when their inferences are such that "the jury can be put into a position of equal vantage for drawing them": Wigmore on Evidence, (1978), vol. 7 p. 32.

A non-expert witness who is called to tell the jury whether in his opinion one object which is present in court resembles another which is present in court is, as it seems to us, covered by this rule. Here, one object was the photograph and the other the appellant. The practice which has its foundation in Palmer's case may be based on an analogy between evidence of the kind there admitted, on the question whether a person present in court resembles one depicted in a photograph, and evidence as to whether a person known to the witnesses from observations on previous occasions, but not necessarily present in court, is shown in a tendered photograph. In the latter instance the court cannot be placed in the same position of advantage as is the witness: he or she has, but the court has not, made the observations of the person in question which are the basis of the evidence. In the same category is evidence identifying a person in court as the person depicted in a photograph or film by reason of some characteristic observable in the photograph or film, known to the witness from his previous observations of the person.

In Smith (1990) 64 A.L.J.R. 588, an application for special leave, the High Court said that the evidence of a witness who is called to give an opinion as to factors which affect the process of identification was inadmissible, and remarked that:

"It is basic to the operation of the jury system that general questions as to the credit and reliability of the evidence of witnesses, including the reliability of identification evidence, are, subject to special exceptions, matters which are within the range of human experience which must be determined by the assessment of the jury."

Here, the question is not with respect to evidence about the reliability of identification, but the approach taken in Smith is nevertheless material: just as it is a jury matter to determine whether identification evidence is reliable, it is such a matter to determine whether a purported photograph of the accused committing a crime is such a photograph.

We would not entirely rule out the possibility of a person becoming an expert by experience, and perhaps experiment, in the distortions of features produced by the placing of a stocking or similar constricting material over the head. But here, no attempt was made to adduce evidence that either policeman qualified as an expert in that subject; it was the officers' knowledge of the past appearance of the appellant which was relied on to qualify them to give the evidence. That knowledge did not give the officers any advantage over the jury. Indeed, one of the two had not seen the appellant for 9 years before he saw the relevant photographs, whereas the jury had the appellant before them when the photographs were produced for their inspection.

We have noted that in Murphy (1989) 167 C.L.R. 94 at 112 it is pointed out that expert evidence may build upon lay observations of events and behaviour and be admissible in that way. That principle does not assist the respondent here, because the officers' evidence was not put forward as expert evidence. We have also noted the disapproval by the House of Lords in Slingsby v. Attorney-General (1916) 33 T.L.R. 120 at 122 of opinion evidence designed to show that a child resembled a married couple said to be parents of the child.

In our respectful opinion the better view appears to be that ordinarily opinion evidence that a person present in court (but observed by the witness at earlier times) looks very much like a person depicted in a photograph before the court will not be admitted, where there is no circumstance giving the witness in question a substantial advantage over the court. Here, the appellant's hair was, it was said, rather different at the time of his arrest in June 1993 from its appearance at the time of the offence, but this had no bearing on the value of the police evidence.

Further, we are of the view that, even if the evidence had been admissible, which it was not, the primary judge should have excluded it as a matter of discretion. Although the opinion of the police officers on the similarity point was of no real significance, it was capable of prejudicing the defence, because bringing out the foundation of the officers' opinion involved giving the jury more information bearing upon past contacts between the appellant and the police than they would otherwise have had. It is true, as was pointed out for the respondent, that the jury already knew the appellant to be a prisoner and, by inference, a long-term prisoner; but the appellant was entitled to have his trial conducted without any further revelations bearing upon his past encounters with the criminal justice system, unless that subject was necessarily touched on in the course of giving evidence of greater than marginal relevance.

To summarise, it is our opinion that the opinion evidence of the police officers as to whether it was the appellant who was depicted in Exhibit 23 in the course of the robbery was irrelevant; apart from that, it should have been excluded as a matter of discretion.

The next question is whether there was a substantial miscarriage of justice. It should be noted, in passing, that in the course of discussion in this Court, counsel for the respondent suggested that admission of such evidence might give the Crown a forensic advantage, by making clear to the jury how it came about that the appellant was charged. It does not appear to us that this is so; in the absence of the police opinion evidence, the jury must surely have assumed that persons in authority on the prosecution side held the view that the relevant photographs depicted the appellant. The forensic advantage sought was presumably that the jury would, on the question of identification, attach special importance to the view of the police officers about the resemblance of the person in the photographs to the appellant.

It was suggested by the respondent's counsel that the summing-up would have been likely to discourage the jury from attaching any weight to the police opinion evidence. In what follows the judge's remarks on the subject will be partially quoted and partially summarised. His Honour referred to the police opinion evidence and then remarked "identification evidence is, of course, extremely critical evidence". His Honour urged the jury to be "very careful in considering it", but said in effect that evidence of persons who recognise someone in a photograph whom they know reasonably well is of more weight than similar evidence from persons who have only a casual acquaintance with the subject. His Honour then analysed the extent to which each of the officers had had an opportunity to become familiar with the appearance of the appellant. He pointed out that the police witness Fitzjohn had not seen the appellant for 9 years before he looked at the photograph, as mentioned above. His Honour suggested, in effect, that the other police witness, Costello, might have had an opportunity to form "a very clear impression...of the accused's appearance".

It is true that subsequently the judge, correctly in our respectful opinion, suggested to the jury that the police would not necessarily be in any better position to identify the person in the photograph than the jury itself. Nevertheless, reading the summing-up as a whole it cannot be denied that it left open to the jury, as a view they might properly take, that at least the opinion evidence of Costello was of real significance in determining whether it was the appellant who was depicted in the robbery photographs.

A point requiring emphasis is that, to a considerable extent, the issues discussed in these reasons differ from those raised on behalf of the appellant at trial, with respect to the question whether the police opinion evidence should have been heard. In particular it was not suggested below that the evidence was simply inadmissible. However, in our opinion, effect should be given to the arguments raised before this Court, despite their being substantially wider than those put to the primary judge.

In our view, notwithstanding the strength of the Crown case, it is impossible to hold that the police opinion evidence might not have influenced the verdict. We would allow the appeal, set aside the four convictions and order a new trial on all counts.