R v UD
[2020] ACTSC 249
•18 September 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v UD |
Citation: | [2020] ACTSC 249 |
Hearing Dates: | 17 September 2020 |
DecisionDate: | 18 September 2020 |
Before: | Elkaim J |
Decision: | See [22] |
Catchwords: | CRIMINAL LAW – EVIDENCE LAW – Identification Evidence – Whether to exclude the evidence – probative value of the evidence – prejudice to the accused – evidence partially admissible |
Legislation Cited: | Evidence Act2011 (ACT) s 137, pt 1 |
Cases Cited: | Bayley v The Queen [2016] VSCA 160; 260 A Crim R 1 |
Parties: | The Queen (Crown) UD (Accused) |
Representation: | Counsel R Christensen (Crown) K Archer (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Numbers: | SCC 352 of 2019; SCC 140 of 2018 |
ELKAIM J:
The trial of the accused is due to start on 21 September 2020. In essence, he is charged with the aggravated robbery of the Mawson Club on 24 December 2017.
The Crown intends to call DI as a witness in its case. DI was the girlfriend of the accused between May and July 2016. The evidence that the Crown wishes to adduce from DI is that contained in a statement she provided to police on 13 July 2018 and in an interview she had with a police officer on 1 September 2020.
At [36] of her statement DI says:
I saw a video of the ACT Policing Facebook page of The Raiders Club in Weston Creek getting robbed on Christmas Eve last year. I knew it was [the accused] and another person. I could tell by the hand gestures, [the accused] always used hand gestures. I could tell by the way the person walked and the way they were built that it was [the accused].
The interview with the police officer includes the following record of what the officer was told by DI:
I knew it was [the accused] in the CCTV footage by the way he walked, run, moved, his build on the way he moved his hands, his hand gestures. I also know from his pants he was wearing, they are pants he had when we were together, I washed them for him a few times. He wore them to work when he was working for Hays Employment Agency in Canberra. They are dark blue work pants and he work odd jobs through the labour hire company Hays. He would work on building sites and things like that.
An oral application was made by the accused, pursuant to s 137 of the Evidence Act2011 (ACT), for the above evidence to be excluded. The section states:
In a criminal proceeding, the court must refuse to admit evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
I watched the CCTV footage which had been viewed by DI and led to her statements of recognition.
The Dictionary to the Act defines “probative value” as follows:
“probative value” of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
The parties agreed on the test to be applied and referred me to the following passage from IMM v The Queen [2016] HCA 14; 257 CLR 300 at [45]:
The use of the term "probative value" and the word "extent" in its definition rest upon the premise that relevant evidence can rationally affect the assessment of the probability of the existence of a fact in issue to different degrees. Taken by itself, the evidence may, if accepted, support an inference to a high degree of probability that the fact in issue exists. On the other hand, it may only, as in the case of circumstantial evidence, strengthen that inference, when considered in conjunction with other evidence. The evidence, if accepted, may establish a sufficient condition for the existence of the fact in issue or only a necessary condition. The ways in which evidence, if accepted, could affect the assessment of the probability of the existence of a fact in issue are various. Within the framework imposed by the statute and, in particular, the assumption that the evidence is accepted, the determination of probative value is a matter for the judge.
In addition, in respect of recognition evidence, the Crown referred me to the discussion by Mossop J in SBT v Colvin [2020] ACTSC 216, from [49], and the accused relied upon the decision of the Court of Appeal in the Supreme Court of Victoria in Bayley v The Queen [2016] VSCA 160; 260 A Crim R 1. I was particularly taken to this passage from Bayley, at [55]:
Adopting the approach described by Haydon, and seemingly endorsed by the majority in IMM, GH’s purported identification from Facebook was, in our view, not merely weak, but ‘simply unconvincing’. Moreover, given the circumstances of the Facebook identification and the publicity surrounding the applicant’s known involvement in the Jill Meagher case, the later photo board identification was virtually of no probative value whatever.
Adopting the language used in Bayley, the accused submitted that the “purported recognition evidence is simply unconvincing”. I observe immediately that the identification evidence referred to in Bayley is very different to that in the present case. It comprised a single image on Facebook viewed 12 years after the attack upon the witness and the witness was aware that the accused person had been charged with the rape and murder of Ms Meagher.
In respect of the blue trousers the accused pointed out that the lighting in the CCTV footage was variable along the path taken by the relevant robber and gave rise to different impressions of the colour of his trousers. There was no other discernible feature of the trousers which could be derived from the footage.
The Crown agreed with this observation, at least to my mind, and did not pursue the admissibility of the ‘trouser’ evidence with much vigour. In my view the capacity of a witness to reliably discern the colour of the trousers from the CCTV is so slight as to render such evidence to be of very little probative value. Subject to a matter that I raise below, I do not permit the Crown to rely upon the evidence of DI about the accused’s trousers.
In respect of the remaining recognition evidence the accused asked me to view CCTV footage which I have previously viewed concerning a separate robbery allegedly carried out by the accused and which was the subject of an exclusion application (R v UD [2020] ACTSC 26). In that decision I rejected, at [19], similar recognition evidence by DI:
Finally, in regard to DI’s observations about the accused’s gestures and manner of walking, I would normally see such evidence as admissible. The difficulty here however, is the nature of the CCTV footage. I agree with counsel for the accused that the footage is not recorded at ‘normal’ speed and includes very slight pauses giving it a stutter effect. In my view the result is to so substantially reduce the probative value (in relation to a recognition of gestures and gait) of the footage as to reduce the observations of DI to having little probative value, and well below the danger of unfair prejudice to the accused.
The viewing of this footage reminded me of the basis upon which I had come to the conclusion expressed in my earlier decision. The difference between the quality of the footage in the earlier case and that in the current matter is stark. The latter is of a significantly better quality and lacks the “stutter effect” that I referred to. In addition the Crown told me that it intended to call evidence to establish that the current footage is in “real time”.
In my view the current footage is long enough and of sufficient quality to override the reservations I expressed in my earlier decision. I think the evidence is probative and capable, under the principles discussed by Mossop J in SBT, of being admissible as recognition evidence.
I do not think that the probative value of the evidence is outweighed by any danger of unfair prejudice to the accused. In fact, as pointed out by the accused, there is fertile ground for cross-examination of DI. For example, also in [36] of her statement, she refers to the accused as being about 170 cm tall, when he is quite obviously significantly taller, perhaps around 177 or 178 cm (as seen in Exhibit 4).
The accused also submitted that DI’s identification evidence may have been a product of her viewing footage from more than one robbery. The accused would no doubt be very reluctant to cross-examine her in a way which might disclose to a jury the possible involvement of the accused in other robberies.
There is nothing in [36] of her statement to suggest this is the case. Her observations are stated to arise from the viewing of the relevant footage. No doubt the Crown will be careful to lead her evidence in such a way that she does not disclose any observations she has made of other footage.
I also note that DI was made available by the Crown for cross-examination in this application but the accused chose not to accept the invitation. The basis upon which she reached her conclusions, and in particular whether any other footage played a part in her assessment, could have been explored in such cross-examination.
Another point made by the accused was that the footage does not depict any hand gestures by the person said to be the accused which could give rise to an identifiable characteristic of the accused. I think the reliance on the term “hand gestures” is an overstatement of what is being said by DI. Her evidence is of a recognition of the accused, essentially through the manner of the person in the footage. It is not a technical assessment of specific hand movements. This is another point that could have been the subject of cross-examination on a voir dire.
In relation to the caveat I expressed at [12] above, the accused submitted that if I excluded the evidence about the trousers but allowed the other recognition evidence, the accused might be deprived of an opportunity to cross-examine DI about the unreliability of her evidence concerning the trousers. I thought this was a valid concern and told the accused that if I did allow the balance of the recognition evidence to be called, then he could require the Crown to also lead the evidence about the trousers.
I make the following orders:
(a)The Crown is not permitted, unless required by the accused, to call evidence from DI concerning the colour or any other characteristic, of the trousers worn by the person said to be the accused in the CCTV footage concerning the robbery at the Mawson Club on 24 December 2017, as posted by the Australian Federal Police on its Facebook site.
(b)The Crown is permitted to lead evidence from DI as stated by her in the first three sentences of [36] of her statement dated 13 July 2018.
| I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 7 December 2020 |
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