R v Perry (a pseudonym) (No 3)
[2016] ACTSC 341
•13 September 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Perry (a pseudonym) (No 3) |
Citation: | [2016] ACTSC 341 |
Hearing Date: | 13 September 2016 |
DecisionDate: | 13 September 2016 |
Reasons Date: | 14 December 2016 |
Before: | Penfold J |
Decision: | See [21] below. |
Catchwords: | CRIMINAL LAW – EVIDENCE – Evidentiary Matters Relating to Witnesses and Accused Persons – identification – evidence identifying the accused as the person depicted in photographs – evidence to be given by partner of accused who lived with him at time photograph taken – whether evidence relevant – whether evidence properly characterised as fact or opinion – whether admissible as opinion evidence given by an ad hoc expert – evidence admitted subject to further satisfactory evidence concerning witness’s familiarity with accused. |
Legislation Cited: | Evidence Act 1995 (NSW), pt 3.3 Evidence Act 2011 (ACT), ss 56(2), 192A |
Cases Cited: | Miller v The Queen [2015] NSWCCA 206 R v Drollett [2005] NSWCCA 356 Smith v The Queen [2001] HCA 50; 206 CLR 650 |
Texts Cited: | Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 12th ed, 2016) |
Parties: | The Queen (Crown) Tom Perry (Accused) |
Representation: | Counsel Mr A Williamson (Crown) Mr J Masters (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Number: | SCC 218 of 2015 |
Introduction
Tom Perry (a pseudonym) has been charged with six offences, being one burglary, one theft, one offence of taking a motor vehicle dishonestly and without consent, and three offences of obtaining property by deception.
The offences
The burglary took place between 5.40 am and 7.30 am on Friday 12 June 2015 at premises in Ainsworth Street in Mawson. Among the items stolen was a wallet containing a number of credit and debit cards.
Over about 20 minutes starting at 7.51 am on the same day, two men used several of the stolen cards in five separate transactions to obtain goods to the total value of several hundred dollars, and attempted to use them in a further transaction, at retail businesses in Tuggeranong.
The investigations
Police obtained CCTV footage showing the various transactions and attempted transactions.
On 20 June 2015, Mr Perry was interviewed by police about the burglary, the theft, the taking of the car and one of the deception offences. He was charged with two of the deception offences that day, and was later charged with a further deception offence, as well as the burglary and thefts in which the cards were stolen.
Mr Perry maintained pleas of not guilty, and in due course his trial began in the Supreme Court.
Application for advance ruling
Defence counsel applied for an advance ruling under s 192A of the Evidence Act 2011 (ACT) in relation to evidence proposed to be tendered by the Crown. The Crown proposed to call [redacted], Mr Perry’s partner, to give evidence that she, having viewed still images taken from the CCTV footage, could identify one of the men shown in those images as Mr Perry. [Redacted] was not only Mr Perry’s partner but was the mother of his child, and she had been living with Mr Perry for at least some months before he was charged with the burglary and remanded in custody.
Defence counsel submitted that the evidence proposed to be led from [redacted] was irrelevant, and that if it were relevant, it would be inadmissible opinion evidence.
Relevance
As to the relevance of the evidence, counsel submitted that irrelevant evidence is not admissible (Evidence Act, s (56)(2)), and that evidence of a person identifying a person shown in an image as the person currently on trial is irrelevant and should not be received. In support of that submission he cited Smith v The Queen [2001] HCA 50; 206 CLR 650 (Smith) in which, he said, the High Court had confirmed his proposition.
What the plurality in the High Court actually said was:
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 s 55 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.
(emphasis added)
However, counsel seemed to overlook what the plurality said next:
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. 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.
The plurality went on to give several other examples of when such identification evidence might be relevant, although none of those examples directly deals with the circumstances that have arisen in this trial.
The prosecutor then drew my attention to several New South Wales cases decided since Smith, in which identification evidence generally of the kind dealt with in Smith has been found to be relevant and sometimes admissible.
Admissibility – fact or opinion evidence
In R v Marsh [2005] NSWCCA 331 (Marsh), the New South Wales Court of Criminal Appeal considered the admissibility of evidence given by the sister of an accused person identifying him as the person shown in photographs of an armed robbery taken by bank security cameras. Studdert J, with whom Kirby and Howie JJ agreed, said:
18 Unlike the police officers in Smith, Ms Wood had grown up with her brother and had an ongoing association with him. The witness had the advantage, not shared by the jury, of the long time opportunity, which she asserted, of observing her brother and of noting his characteristics, his stature, his stance, his facial features, and the manner in which he wore his jacket, which the witness claimed was so familiar to her. Hence the evidence which Ms Wood was able to give and did give satisfied the requirement of relevance.
His Honour then considered whether the sister’s evidence was admissible as evidence of fact, or whether it was opinion evidence admissible only in accordance with pt 3.3 of the Evidence Act 1995 (NSW). His Honour referred to the difficulty, in relation to a witness’s evidence of recognising an image as depicting a known individual, of determining when such evidence is factual and when it is opinion evidence and not necessarily admissible, and canvassed the relevant arguments made by Sheller J in R v Smith in the New South Wales Court of Criminal Appeal [1999] NSWCCA 317; 47 NSWLR 419 and by Kirby J in Smith in the High Court. Studdert J concluded that the evidence given by the appellant’s sister “was in a different category from that of the police officers in Smith” and that:
Whilst recognising the blurred boundary between fact and opinion to which Kirby J referred in the passage cited above, it seems to me that the nature of the relationship between the appellant’s sister and the appellant, together with her opportunity in that relationship to become familiar with his stature, his stance and his facial features, was such that Ms Wood’s evidence identifying her brother is to be regarded as direct evidence that the person shown in the photograph was her brother.
Studdert J went on to determine that if that witness’s evidence was properly opinion evidence, then:
Her close familiarity with the appellant could be regarded as specialised knowledge based upon experience, enlivening the application of s 79 of the Evidence Act. In R v Leung (1999) 47 NSWLR 405, the Court of Criminal Appeal considered that s 79 is broad enough to accommodate the concept of an ad hoc expert: see in particular the judgment of Simpson J at pp 212-214 [36]-[40], with whose judgment Spigelman CJ and Sperling J agreed concerning the scope of s 79. See also the judgment of Kirby J in Smith at p 669 [59], where his Honour adverted to ad hoc expertise based on familiarity as a possible basis for exception from the opinion rule provided by s 79.
In R v Drollett [2005] NSWCCA 356, decided shortly after Marsh, Simpson J, with whom McClellan CJ at CL and Rothman J agreed, considered evidence tendered from a prison officer purporting to identify the appellant from CCTV footage of a fracas in a prison yard. Simpson J concluded that the prison officer did have an advantage over the jury in that he had a greater capacity to identify or recognise the appellant, and that his evidence “was sufficiently different in quality from the evidence of the two police officers in Smith” to be accepted as relevant. However, her Honour went on to conclude (at [56]) that the prison officer’s evidence “was no more than an educated interpretation of what was depicted in the footage” and was therefore opinion evidence. She said:
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.”
That is, the evidence was not admissible in reliance on a finding that the prison officer was an “ad hoc expert”, because there was no evidence that he had either expertise in “deciphering” the film footage, or particular familiarity with the appellant (at [63]).
Finally, in Miller v The Queen [2015] NSWCCA 206, the New South Wales Court of Criminal Appeal (Beazley P and Fullerton and Hamill JJ) confirmed the admissibility of evidence from witnesses identifying the appellant from CCTV footage in a case where the appellant had lost a significant amount of weight between the time of the offence (when the CCTV footage had been recorded) and the time of the trial. The Court said:
This was not a case where the photographic evidence before the jury was such that they were in as good a position to determine whether the person in the photograph was the person in the photograph. Rather, each of the witnesses was in a better position than the jury to recognise the appellant because his appearance at the time of the trial differed in a significant way from his appearance at the time of the offence. They were able to identify the person in the photograph as the appellant at the time that the offences were committed. It followed that the witness statements were relevant: R v Smith [2001] HCA 50; 206 CLR 650 at [13]-[15].
I was satisfied that [redacted]’s identification of Mr Perry as the person shown in the still images taken from the CCTV footage of the card transactions would be admissible if the evidence she gave of the nature and length of her relationship with Mr Perry satisfied me that she had specialised knowledge giving her a capacity to identify Mr Perry that exceeded the jury’s ability to determine whether Mr Perry, as the jury observed him, was the person seen in the CCTV footage. Without having heard her evidence, I did not rule on whether [redacted]’s familiarity with Mr Perry would render her evidence factual, or would merely qualify her as an ad hoc expert.
Ruling
Accordingly I ruled that [redacted]’s identification evidence would be admissible, subject to her giving satisfactory evidence of her familiarity with Mr Perry, and would be admissible either as factual evidence, or as opinion evidence given by an ad hoc expert, depending on the nature and extent of that familiarity.
Postscript
[Redacted] gave evidence that she had known Mr Perry for three years, that they had a child together, and that they had been living together at her mother’s place for at least two months before he was arrested in connection with these charges. She identified him as the man shown in the still images from the CCTV footage. Defence counsel then cross-examined [redacted] as follows:
[Redacted], you are absolutely certain that’s Mr Perry don’t you?---Not absolutely certain but it looks a helluva lot like him, yes.
I’ll show you the clothes, there’s some clothes?---Yes, absolutely, yes.
There’s no doubt it’s him is there?---Yes.
Absolutely. In fact you know him pretty well, that’s why you were able to identify him from the photo?---Yes.
| I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: David Hoitink Date: 14 December 2016 |
| I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate to the Acting Judges with the permission of the Chief Justice. Date: 26 September 2025 |
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