R v Smith (No 3)

[2014] NSWSC 771

Supreme Court

New South Wales

Medium Neutral Citation:	R v Smith (No.3) [2014] NSWSC 771
Hearing dates:	21/05/2014
Decision date:	03 June 2014
Jurisdiction:	Criminal
Before:	Garling J
Decision:	(1) Leave to further re-examine Mr Stein with respect to his identification of the figure on Gidley Crescent is refused.
Catchwords:	CRIMINAL LAW - evidence - identification evidence - modes of identification - other visual identification - single photograph - accompanying online news article CRIMINAL LAW - evidence - identification evidence - admissibility - single photograph - unreliability - displacement effect CRIMINAL LAW - evidence - judicial discretion to admit or exclude evidence - Evidence Act 1995; s 137 - prejudicial evidence - probative value - unfairly prejudicial to accused - whether danger of unfair prejudice to the accused outweighs probative value
Legislation Cited:	Evidence Act 1995
Cases Cited:	Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395 R v Skaf [2004] NSWCCA 37
Category:	Interlocutory applications
Parties:	The Crown Graham Smith (Accused)
Representation:	Counsel: Mr M Barr (Crown) Ms K Traill (Accused) Solicitors: Director of Public Prosecutions (Crown) SCT Lawyers (Accused)
File Number(s):	2013/23883

Judgment - Disputed Identification Evidence

1. The Crown has sought leave in the re-examination of Mr Jason Stein to lead identification evidence. Counsel for the accused opposes the introduction of the identification evidence on the basis that the evidence has little, if any, probative value, and there is significant unfair prejudice to the accused if the evidence is admitted.

1. For the reasons which follow, I have decided to reject the evidence, and accordingly, dismiss the application of the Crown.

The Indictment

1. The accused, Mr Graham Smith, has been indicted in the following terms:

"for that he, on 20 January 2013, at Claymore, in the State of New South Wales did murder Joshua George."

The accused has pleaded not guilty.

1. In opening her case to the jury, counsel for the accused informed the jury that the principal issue which the jury would be required to determine, was whether, at the time he deliberately shot the deceased, Mr Joshua George, the accused was acting in self-defence.

1. To date, the accused's case has been conducted in a way which reflects this statement of the principal issue.

1. Accordingly, it is not in dispute in the course of the trial that the deceased was shot and killed by the accused. Nor it is in issue that he did so with the intention of causing grievous bodily harm.

Some Uncontroversial Facts

1. The shooting occurred in Gidley Crescent, Claymore at about 1.30pm on 20 January 2013. In the relevant area, houses that backed onto Gidley Crescent had their street address as Salvana Way.

1. The fatal shot was fired from a .22 calibre rifle, and only one shot was fired. The bullet entered the deceased's body at a position slightly above the sternal notch, and continued on a path through the body damaging major organs and causing the death of the deceased in a very short space of time.

1. The accused left the scene and was not apprehended for about four days.

1. At the time of the shooting, the deceased had been seen walking along Gidley Crescent in the company of two people, Mr Grant Perkins and Ms Jamaine Ronayne. It is the Crown's case that another male, Mr Jarryd Perkins, was also present at the scene of the shooting. The accused's case is that he was confronted by both Mr Grant Perkins and Mr Jarryd Perkins, as well as Ms Ronayne and the deceased.

1. A few minutes before the shooting occurred, a witness, Mrs Hotz, saw a male walking along a pathway in front of her home, which is a short distance from Gidley Crescent. The male figure she saw was carrying a rifle, wearing blue gloves, was dressed in green football shorts and a pale blue top, and was wearing a cap. She described the figure as having a ponytail, or rat's tail, hairstyle. The accused accepts, and his counsel has admitted to the jury, that the figure seen by Mrs Hotz was him.

Context for the Identification Evidence

1. The identification evidence which is intended to be led by the Crown, arises in the following context.

1. Mr Stein has given evidence that, shortly prior to the shooting of the deceased, he drove along Gidley Crescent from Dobell Street towards Read Way. As he did so, he drove past three people walking in single file along Gidley Crescent in the same direction as he was travelling. It is accepted by the Crown and the accused that these people were the deceased, Mr Grant Perkins, and Ms Jamaine Ronayne.

1. Shortly after passing these three people, Mr Stein observed a figure appear in front of his car, having emerged from a pathway on the right hand side of Gidley Crescent in the direction of his travel. The pathway from which this figure emerged is the continuation of the pathway along which the accused was seen walking by Mrs Hotz. If the accused was walking towards his home at 25 Salvana Way, which is his case, then he would have emerged onto Gidley Crescent where the figure seen by Mr Stein emerged.

1. Mr Stein has given evidence that the figure was wearing a blue "hoodie" or hooded jumper, and was wearing jeans. He saw that this figure was pulling down a pair of blue gloves on his hands. He said that the figure was of a man of medium build.

1. In his evidence, Mr Stein did not give any description of any facial features of the figure, although he did say words to the effect that the person had a vacant look on his face. The male passed quite close to his motor vehicle. Mr Stein also said that the person appeared to be holding something underneath the jumper, under his left elbow.

1. Mr Stein said that when he saw this male, there was a distance of about 20-30 metres between the male and the group of people whom he had driven past, of which group the deceased was a member.

1. Having seen the male figure, Mr Stein then turned his motor vehicle into Read Way to drop his mother off at her home. A short time later, within a matter of one or two minutes, he heard a rifle shot and then heard a female screaming very loudly. He walked quickly to Gidley Crescent and saw the male in the blue hoodie jump the fence of a house located in Gidley Crescent opposite Read Way.

1. In his evidence in chief, Mr Stein was not asked to, and did not, make any identification of this male person. In cross-examination, Mr Stein agreed that the male whom he saw, was not wearing clothes of the description which the accused had been seen wearing by Mrs Hotz in the minutes before the shooting occurred, in particular green football shorts and a pale blue T-shirt..

1. The accused was not apprehended at the scene nor on that day. By the time he was apprehended, he had changed clothes. There is no other evidence of any observation of a male wearing a dark blue hoodie and jeans at the scene in the immediate aftermath of the shooting.

1. It has become apparent in the course of the conduct of the trial, that it is the accused's case that the male in the blue hoodie seen by Mr Stein, is Mr Jarryd Perkins. The Crown intends to submit to the jury that the male in the blue hoodie was the accused. Thus, the identification of the male figure has assumed importance in the factual matrix which will be before the jury.

The Evidence of Identification

1. The Crown wishes to lead evidence that, in the course of the afternoon following the shooting, Mr Stein, whilst at work and using his computer, saw an article on MSN News which contained a report of the shooting, and also a photograph of the accused. The photograph had been circulated by the police as being of a person whom the police were seeking with respect to the shooting.

1. It is anticipated by the Crown that Mr Stein will say that when he saw that photograph of the accused on the internet, he had some or all of these reactions:

"... it brought tears to my eyes ..."

"... I pretty much shit myself when ... shit, that's the guy..."

"... when I saw it I thought, I couldn't believe how well I'd described him to the detectives last night ..."

"... it was the hair ... the stockiness of the guy ... his build ..."

"... the eyes and the hair did it every time. It was sticking out ... like a Herman Munster, sort of haircut ..."

"... once I saw that photo on MSN, I literally nearly had tears in my eyes, that's how close I described him last night."

1. In his statement, from which this identification evidence would be drawn, Mr Stein went on to say that he was attracted by the blue gloves (a feature not shown in the photograph), and that he did not notice whether the person had a goatee beard, or any facial hear, nor did he notice whether the person had any tattoos on his neck.

1. The photograph shows the accused from the neck up, as a man with facial hair and a "Ned Kelly" style tattoo on his neck. Other than by reference to his face, the photograph does not show the nature of the accused's build, in particular whether he is "stocky".

1. This evidence, if admitted, would be the only positive evidence of the identity of the man in the blue hoodie and jeans.

Legal Principles

1. Identification evidence of the kind and nature which is intended to be led, is notorious for the problems and difficulties which can arise. Such identification evidence can be unreliable. Caution is always to be exercised in admitting this evidence, and once admitted, juries must be given directions about using the evidence unhesitatingly: see s 116 of the Evidence Act 1995.

1. When a person sees, or is shown, a single photograph rather than a photo array from which one photograph is chosen, it is obvious that an identification arising from that single photograph may be unreliable. As well, where the photograph is associated with the description that the person is wanted by the police, albeit for the provision of assistance, those difficulties are magnified.

1. As Gibbs CJ said in Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395 at 400, in relation to a single photograph identification process:

"... it would be unfair and improper to show to a witness, ... a single photograph of a person who is said to be the suspect, and it would be unsafe to act on evidence of identification given in those circumstances."

1. Attention must also be paid to the judgment of Stephen J in Alexander at 409, where his Honour describes the phenomenon known as the "displacement effect" which is relevant here. In R v Skaf [2004] NSWCCA 37 at [80], the Court described the displacement effect in the following terms:

"The displacement effect refers to the risk that a witness who has seen a photograph of someone may unconsciously have his or her memory reinforced by the photograph as distinct from his or her earlier observation of the person in the flesh; and that that displaced memory may be the basis of a later in-court or other identification made in the presence of the accused person."

1. It is the existence of this effect upon which the accused relies here, even though Mr Stein may not accept its existence.

Discernment

1. In this case, because Mr Stein had seen a single photograph which identified a person, shortly after the shooting, whom the police were seeking to interview, there is a real risk that Mr Stein has, entirely unconsciously, substituted that image in the photograph for the image in his mind of the face of the person whom he saw in the blue hoodie. After all, he did not see anyone else who could have been the shooter, and Mr Stein also saw the person leaping the fence at the scene.

1. Accordingly, it is easy to see that, quite unintentionally, Mr Stein may have associated the male in the blue hoodie as being the shooter, and that he has then associated the photograph circulated by the police as being that person.

1. Because the association caused by the displacement effect is unintentional, it cannot be expected that Mr Stein, if cross-examined about it, would necessarily understand what has occurred. Accordingly, any cross-examination of Mr Stein by counsel for the accused is more likely than not to result in an affirmation of the evidence of identification, rather than anything else.

1. As well, there are some other matters to be noted. They are these:

(i)   The article and photograph displayed on the internet are not available to the parties. Although, it can be demonstrated in evidence what photograph, on the balance of probabilities, was likely to be the one seen by Mr Stein.

(ii)   The identification evidence arises in the course of reexamination, after Mr Stein has given a clear description of clothes which the figure was wearing, which description is wholly inconsistent with the clothes which the accused was seen wearing shortly prior to the shooting.

(iii)   Whether this figure seen by Mr Stein was, or was not, the accused, does not directly impact upon the Crown case, which is that at the time the fatal shot was fired, the accused was standing behind the paling fence of No. 25 Salvana Way, looking out onto Gidley Crescent. In other words, it is not the Crown case that this figure, even if it was the accused, fired the fatal shot whilst standing on Gidley Crescent where Mr Stein saw him.

1. The highest that the probative value can be put for the Crown is that the accused, prior to firing the fatal shot, has changed his clothes, perhaps in order to conceal his appearance. However, since the accused admits firing the fatal shot, but asserts that he did so in self-defence, the fact that he may or may not have changed his clothes seems to me to be of little, if any, probative value.

1. The identification of the male figure is a piece of evidence of relevance. Accordingly, assuming that it was an appropriate piece of evidence, and in admissible form, the Crown would be entitled to lead it.

1. However, having regard to the nature of the evidence, its relatively low probative value, and the very high risk of unfair prejudice to the accused, in light of the matters which I have discussed above, I have not been persuaded that I should exercise my discretion to permit the Crown to lead it.

1. On the contrary, I am persuaded that by the application of s 137 of the Evidence Act, I must reject the evidence because the danger of unfair prejudice to the accused from the admission of such evidence, far outweighs any probative value which the evidence may have for the prosecution case. It follows that leave to adduce the evidence must be refused because the evidence is inadmissible.

Order

1. I make the following order:

(1)   Leave to further re-examine Mr Stein with respect to his identification of the figure on Gidley Crescent is refused.

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Decision last updated: 22 July 2014