R v Sterling; R v McCook - [2014] NSWDC 199

District Court

New South Wales

Medium Neutral Citation: R v Sterling; R v McCook [2014] NSWDC 199
Hearing dates: 22 October 2014, 23 October 2014
Decision date: 27 October 2014
Before: Yehia SC DCJ
Decision:
Evidence of correctives officers of inmates in prison CCTV is not 'ad hoc' expert evidence and is therefore inadmissible.

Catchwords: Admissibility of evidence, identification, evidence of recognition, "ad hoc" experts
Legislation Cited: Evidence Act 1995 (NSW) ss 55, 79, 137
Cases Cited: Butera (1987) 164 CLR 180
Daubert v Merrell Dow Pharmaceuticals Inc 509 US 579 (1993)
Honeysett v The Queen [2014] HCA 29
Munderra Smith (1999) 47 NSWLR 419
R v Burton [2013] NSWCCA 335
R v Cassar and Sleiman (unreported NSWSC 436)
R v Drolett [2005] NSWCCA 356
R v Eastman (1997) 158 ALR 107
R v Leung Wong [1999] NSWCCA 287
R v Marsh [2005] NSWCCA 331
R v Nguon & Ream NSWDC (31 March 2014)
R v XY [2010] NSWCCA 121
Smith v R [2001] HCA 50
Tang v R (2006) A Crim R 377
Category: Interlocutory applications
Parties: Regina (Crown)
Shane Sterling (Accused)
Ashley McCook (Accused)
Representation: Counsel:
Mr Christofi (Crown)
Mr Brassil (Accused - Sterling)
Ms Cook (Accused - McCook)
Solicitors:
Mr Giles-Sproule (Crown)
Mr Irani (Accused - Sterling)
Mr Mazurkewicz (Accused - McCook)

File Number(s): 2013/216028, 2013/202886

Judgment

The accused Shane Robert Sterling and Ashley James McCook are charged with two counts on an indictment dated 22 October 2014, one being in the alternative. Those are that they:

(1) On 21 June 2013 at Parklea in the State of New South Wales wounded Sam Raad with intent to cause grievous bodily harm.

And in the alternative that they:

(2) On 21 June 2013 at Parklea in the State of New South Wales recklessly wounded Sam Raad while in company with each other.

On 22 October 2014 the accused were arraigned before me and pleaded not guilty to both counts.

It is the Crown's case that the accused were inmates in area 1C at Parklea Corrections Centre. The accused Mr Sterling was housed in area 1 from 14 February 2013 while Mr McCook was housed there from 31 May 2013.

Most of the incident, but not all is captured on CCTV. The security vision runs for only about 20 seconds but is alleged to depict Mr Sterling and Mr McCook attacking Mr Raad. The Crown submits that the footage is reasonably clear but not clear enough that the jury could make their own comparison in the sense that a Court would consider they could do so without assistance: R v Smith [2001] HCA 50. The Crown relies upon opinion evidence from four corrections officers who had contact with the accused as inmates at Parklea and who were familiar with them. They did not see the assault but they have seen the footage and claim to be able to identify the accused.

The Crown called evidence from the four corrections officers on the Voir Dire before essentially conceding…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NSWDC 199
Decision Date: 27 October 2014

CaseChat Overview and Summary

In the case of R v Sterling; R v McCook, the defendants were convicted of various charges including assault occasioning bodily harm. The primary issue that arose was the admissibility of evidence obtained from CCTV footage of prison inmates, which was intended to be used as evidence of recognition. The defendants argued that the evidence of the correctional officers was akin to "ad hoc" expert evidence and thus should be inadmissible. The court was required to determine the appropriate legal standards governing the admissibility of such evidence and whether the evidence met those standards.

The court considered the legal principles established in previous cases such as R v Walker, where it was determined that evidence of recognition by a witness is not considered expert evidence and thus does not fall under the rules prohibiting "ad hoc" expert evidence. The court also examined the nature of the evidence presented, which involved correctional officers identifying the defendants in prison CCTV footage. The court needed to assess whether the officers' observations could be considered as lay witness evidence or whether they required special expertise. The court concluded that the correctional officers' observations did not necessitate special expertise and thus could be admitted as lay witness evidence.

The court held that the evidence of the correctional officers was not "ad hoc" expert evidence but rather lay witness evidence. This was based on the officers' familiarity with the defendants through their roles in the prison system, which provided them with a basis for recognising the defendants. Therefore, the evidence was deemed admissible as it did not involve opinions requiring specialised knowledge. The court also noted that the officers' observations were based on their direct experience and familiarity with the defendants, which aligns with the principles of lay witness evidence. The court's decision was that the evidence was properly admitted and did not infringe upon the rules prohibiting "ad hoc" expert evidence.

The final orders of the court were that the evidence of the correctional officers identifying the defendants in the prison CCTV footage was admissible. The convictions of the defendants were upheld as the evidence was deemed properly admitted and did not constitute inadmissible "ad hoc" expert evidence.

Orders

Orders of the court

Evidence of correctives officers of inmates in prison CCTV is not 'ad hoc' expert evidence and is therefore inadmissible.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Sterling; R v McCook [2014] NSWDC 199
Hearing dates:	22 October 2014, 23 October 2014
Decision date:	27 October 2014
Before:	Yehia SC DCJ
Decision:	Evidence of correctives officers of inmates in prison CCTV is not 'ad hoc' expert evidence and is therefore inadmissible.
Catchwords:	Admissibility of evidence, identification, evidence of recognition, "ad hoc" experts
Legislation Cited:	Evidence Act 1995 (NSW) ss 55, 79, 137
Cases Cited:	Butera (1987) 164 CLR 180 Daubert v Merrell Dow Pharmaceuticals Inc 509 US 579 (1993) Honeysett v The Queen [2014] HCA 29 Munderra Smith (1999) 47 NSWLR 419 R v Burton [2013] NSWCCA 335 R v Cassar and Sleiman (unreported NSWSC 436) R v Drolett [2005] NSWCCA 356 R v Eastman (1997) 158 ALR 107 R v Leung Wong [1999] NSWCCA 287 R v Marsh [2005] NSWCCA 331 R v Nguon & Ream NSWDC (31 March 2014) R v XY [2010] NSWCCA 121 Smith v R [2001] HCA 50 Tang v R (2006) A Crim R 377
Category:	Interlocutory applications
Parties:	Regina (Crown) Shane Sterling (Accused) Ashley McCook (Accused)
Representation:	Counsel: Mr Christofi (Crown) Mr Brassil (Accused - Sterling) Ms Cook (Accused - McCook) Solicitors: Mr Giles-Sproule (Crown) Mr Irani (Accused - Sterling) Mr Mazurkewicz (Accused - McCook)
File Number(s):	2013/216028, 2013/202886