R v Wayne Rodney Schneider (No 1)

[2010] NSWDC 6

CITATION:	R v Wayne Rodney SCHNEIDER (No 1) [2010] NSWDC 6 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	8 - 9 February 2010
JUDGMENT DATE:	9 February 2010
JURISDICTION:	District Court Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	The evidence to be admitted
CATCHWORDS:	CRIMINAL LAW - Judgment - Admissibility of evidence - Photo identification - Assessment of risk of unfair prejudice - Displacement effect
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	R v Bakir [2009] NSWDC 12 R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 325 R v Fisher [2001] NSWCCA 380 R v Mundine [2008] NSWCCA 55 R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
PARTIES:	The Crown Wayne Rodney SCHNEIDER
FILE NUMBER(S):	DC 2009/8191
COUNSEL:	Ms T Smith (Crown) Mr C Heliotis QC, Mr A Djemal (Defendant)
SOLICITORS:	Director of Public Prosection Galloways

JUDGMENT

1 HIS HONOUR: On 11 February 2006 a group of people approached a nightclub in the Kings Cross area called the Sapphire Club. They were seeking admission to the club but those responsible for deciding who could enter the club would only let a number of the group into the club. This caused some tension between at least one member of the group and those responsible for admission to the club. After matters were dealt with verbally for some time a member of the group punched a member of the staff of the Sapphire Club. Security guards employed at the club reacted, as did many of the members of the group seeking admission. What I have described so far was captured on CCTV footage. However, at this stage, both the security guards and the group moved out of camera range. Off camera someone produced a pistol and shot one of the security guards, Willy Brown, in the leg. That has led to the accused facing the charge of maliciously inflicting grievous bodily harm with intent. He was arraigned on that charge yesterday and pleaded not guilty.

2 Before the jury could be empanelled I was asked to deal with the question of admissibility of evidence from a Ms Egan identifying the accused as being the person who shot Mr Brown. Ms Egan was in the vicinity of the nightclub and some four months after the events of 11 February 2006 she went to the police station where she was shown, on a computer screen, a number of photographs. Although there were twenty photographs in the array and the accused was in position number 5, Ms Egan selected the accused before she had gone past his photograph. She then continued looking at the remaining photographs and after completion of that process confirmed her selection of the accused as being the person who shot Mr Brown.

3 Mr Heliotis, who with Mr Djemal appears for the accused, says that I should exclude that evidence of identification under s 137 of the Evidence Act because the probative value of the evidence is outweighed by the risk of unfair prejudice. Recent decisions on this issue have emphasised that in assessing the probative value of Ms Egan’s evidence I am not to take into account questions of reliability and credibility. I am not to usurp the Jury’s function in that regard. Thus, early decision such as R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 325 and R v Fisher [2001] NSWCCA 380 need to be looked at in the light of more recent decisions of, for example, R v Mundine [2008] NSWCCA 55 and R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228. However, it remains the case that I am to look at factors affecting the accuracy of Ms Egan’s identification of the accused as being the shooter in assessing the risk of unfair prejudice.

4 A number of challenges were made the identification performed by Ms Egan. It was submitted that the array was such that the accused’s photograph stood out from the others. I do not accept that. As I mentioned Ms Egan selected the accused’s photograph before she completed viewing the entire array and so perhaps it might be thought that the issue as to whether photographs 6 to 20 differ significantly from the photograph of the accused is somewhat irrelevant. But, as Mr Heliotis points out, Ms Egan did look at all twenty photographs eventually, and having identified the accused she may be reluctant to change her mind after having viewed all twenty. So I will look at the entire twenty photographs in assessing whether the accused’s photograph stood out in such a way from the others as to perhaps subconsciously persuade Ms Egan that she should select that photograph, and perhaps more fundamentally, whether the process has created a risk of unfair prejudice to the accused.

5 Mr Heliotis says that the accused is closer to the camera than the others. As I mentioned during submissions yesterday, the accused’s face appears to fit about as much of the frame as other photographs, which tends to suggest that even if he was closer or further away from the camera it matters not. I cannot tell how close he was to the camera when compared to the other accused from simply looking at the photographs.

6 Mr Heliotis relies significantly on what he says is the different colouring of the accused compared to other photographs in the array. He says this is significant because Ms Egan when she first spoke to the police indicated that the accused had a darker colouring than if he was white. (I put the matter that way because of the way Ms Egan is recorded as describing the skin colouring of the shooter in her statement and her subsequent denial that she had put things that way.) Whatever term she actually used, it is clear that she meant to convey a person whose skin colouring was not Caucasian. I do accept that it is at least possible, that the accused’s colouring as depicted in that photograph, is darker than perhaps all of the other people in the array, with a possible exception of number 4 and so that is a matter which upon close analysis, and careful examination of the photographs, might tend to make the accused look different from the others. But looking at the photographs as a whole, and looking at each of the photographs in the array, there is nothing significant which causes the accused photograph to leap out from the others.

7 In this regard it is significantly different from cases such as Blick, where the witness, having told police that the offender had a goatee beard, was asked to look at a photographic array in which only Mr Blick was depicted with such a beard. In Mr Blick’s case his photograph did immediately stand out from the array. In this accused’s case, that is not the situation. It is hard to explain why as this is ultimately a matter of impression, but I repeat, there is nothing in the impression I gained from the photographs to suggest that the accused’s photograph stood out from the others.

8 Of course there are differences between any photograph in the array and others and so it might be said that each of the photographs, does upon close analysis, stand out from the other nineteen. But the test is not: is the accused’s photograph that of an individual who looks different to the other nineteen? If that were the test no photographic array could ever lead to the admission of identification evidence. The test is whether the photographic array is such that carries a risk of unfair prejudice to the accused and I do not believe that the array before me is of that standard.

9 One of the matters that is different in the accused’s photograph from the others, is that he is depicted wearing two earrings. There are arguments both ways about the significance of that. The Crown relies on the fact that Ms Egan says in her first statement to the police, that the shooter was wearing an earring, singular. But the person she picks has two earrings. The Crown thus says that it tends to suggest that she has focused on the accused’s face rather than extraneous matters, which can be changed. On the other hand the accused relies on the circumstance that after having picked the accused’s photograph, one of the reasons Ms Egan gives for selecting the photograph is that he has two earrings.

10 In assessing the impact upon Ms Egan of the nature of the array, I look primarily what she told the police at the time, that is her spontaneous utterance. But I also look at what she says later on about that process. She explains that it was the accused’s facial features which led her to select him, amongst other matters. That is consistent with my observation of the way she reacted when she saw the accused’s photograph. She was to my mind, immediately confident that she had identified someone she had seen before on the relevant night. And such confidence would not come about simply by seeing a dark skinned man with two earrings.

11 I reject the proposition that the photographic array was such that it caused a risk of unfair prejudice to the accused, if the evidence of the identification was admitted.

12 Mr Heliotis however, has another point and that concerns the possibility that Ms Egan has been influenced by what is referred to as the displacement effect. To explain that I need to return to the facts. It will be recalled that one of the group which approached the night club argued with the doormen for some time. He was wearing white shoes and so throughout the case he has been referred to as either “white shoes” or “Mr white shoes”. I will continue to do that in this judgment. Put simply, it is the case for the accused that “white shoes” was the shooter and that Ms Egan has incorrectly identified the accused, having seen him on the night. That is, in her mind, her memory of the shooter’s appearance has been displaced by the appearance of the accused, once she saw the familiar face of the accused in the photographic array. In support of that evidence Mr Heliotis points to other evidence suggesting the similarity between the facial features of the accused and “white shoes”. I accept from that evidence that at least as far as their facial features are concerned, the two men are similar. There is one significant difference between them and that concerns their height. But of course, when Ms Egan was shown the array she saw only photographs of their faces.

13 Mr Heliotis puts this proposition. He says that there is a real risk that displacement effect has operated here and that no direction from me can cure the risk of unfair prejudice to his client.

14 It is important to understand what I am deciding here. I am not deciding whether a conviction based on Ms Egan’s evidence would be unreliable or unreasonable. I am not deciding whether beyond reasonable doubt, she has correctly identified the accused as being the shooter. I am not even deciding whether, there is a case fit to go to the jury based on Ms Egan’s evidence. Those questions are either not for me or if they are for me, they come at a later stage.

15 It is important that I understand the limitations of my role at this stage. I have heard only a small part of the evidence the Crown has to present. It would be quite wrong for me to approach this case on the basis that I am deciding whether there would be a miscarriage of justice based on the proposition that a conviction in this case would be unreasonable. What I am to decide is whether, after proper directions are given to the jury, the seductive effect of identification evidence is such that the jury will approach this matter in an emotional way or use the evidence in an illogical way.

16 Cases where identification evidence is extremely weak have led to the situation where the prejudicial effect of evidence is such that the evidence excluded. Indeed I did that myself, only recently, in a decision of R v Bakir [2009] NSWDC 12 and the Court of Criminal Appeal in Blick and Fisher also reached the conclusion that evidence admitted by the trial judge should not have been admitted. So it is certainly not the case that simply because evidence of identification can be analysed logically, and logical arguments can be put to a jury suggesting that the weight to be given to the evidence is low or indeed that the evidence should be rejected, leads to the conclusion that there is no risk of unfair prejudice in an identification case. There is always a risk of unfair prejudice in cases involving identification for reasons which are well known and have been expressed on many occasions. Identification witnesses are usually honest. That is, they give evidence of something they truly believe. They are difficult to cross-examine and in many cases there is nothing to contradict them. In this case, however, there is evidence to suggest that Ms Egan has made a mistake and indeed much of the evidence of the last day and a half has been addressed to that issue. She, for example, and I have mentioned this, describes the man whose photo she selected as having argued with the doorman for some time. Yet the video evidence suggests that the person who was doing most of the arguing was “white shoes”, not the accused. True it is that the accused intervenes from time to time, but he certainly does not take the primary role that “white shoes” does. Thus there might be good argument to suggest that Ms Egan has identified someone she thinks is “white shoes” because of his similarity with the appearance of the accused. But these matters are logical and can be put to the jury.

17 Of course, as I have mentioned, and I appreciate I am going a bit around in circles here, simply because logical arguments can be put does not eliminate the risk of unfair prejudice and I do not suggest that whenever a logical argument can be put the evidence should be allowed. Take Blick for example. In Mr Blick’s case he was the only person in the array with a goatee beard and the witness had described the offender as having such a beard. It is a very logical thing to say to a jury;

“well the evidence is exceedingly weak because of the photographs chosen by the police which suggest to the witness that he should pick the photograph of the accused”.

But the Crown accepts, and so do I, that even under current authority from the Court of Criminal Appeal the evidence in Blick would still be excluded. The explanation for that is this: the evidence of identification is exceedingly weak indeed, its probative value is tiny and so it does not take much prejudice to lead to that evidence being excluded. But this is far from that case. I mentioned before that the array is one where the accused’s photograph does not stand out and there are other explanations for Ms Egan saying that the man whose photo she picked argued with the doorman for some ten to fifteen minutes in circumstances where the accused did not do that.

18 There remains the seductive effect of identification evidence, but in my view the state of the evidence is such that, especially after I give directions to the jury, the probative value of Ms Egan’s identification outweighs the risk of unfair prejudice. It is not for me to decide that Ms Egan has or has not confused the accused and “white shoes”. Nor could I necessarily find, if I was to make that decision, that the only explanation for Ms Egan’s identification is that she has displaced the memories of the appearances of “white shoes” and the accused in her mind. It is possible, perhaps equally so, that she has correctly identified the accused as the shooter and made a mistake as to what he was doing earlier, especially, as I mentioned, given that he did, from the footage, get involved in the argument with the doorman from time to time.

19 Of course it would have been better if there was a photo of “white shoes” included in the array but the circumstance that he is not there, whilst clearly adding to the risk of unfair prejudice does not in my view get us to the stage where the risk of unfair prejudice outweighs the probative value of Ms Egan’s identification.

20 Mr Heliotis raises a point at this stage concerning the fact that “white shoes” and the accused were in the same group, and that the jury might think that the accused should produce “white shoes” so that they can compare his appearance with that of the accused and decide the strength of the accused’s argument that is that “white shoes” is the shooter with that benefit. Mr Heliotis says that that leads to the proposition that the accused would be forced to give evidence to explain why he cannot produce “white shoes”. He says that prejudices the accused. I am not entirely sure that in assessing the admissibility of Ms Egan’s evidence that I should look at such consequences for the accused. As I understand s 137 I look at the risk of unfair prejudice occasioned by the admission of the evidence itself, that is that the jury would use the evidence illogically or emotionally. I do not think that s 137 requires that I look at tactical consequences for the accused. But if I am wrong, in case I am wrong I will say this: it may be a matter where the accused has to take into account in deciding whether or not to give evidence that the jury might be wondering where “white shoes” is and why the accused has not brought him along to court. That of course will be a decision for him at the end of the Crown case. It may be that other evidence in the Crown case itself suggests the accused would not be able to bring “white shoes” along to court and in circumstances where the accused is saying “white shoes” is the shooter a jury could easily understand the reluctance of “white shoes” to come to court and the inability of the accused to produce him. I have taken into account in assessing the risk of unfair prejudice that there is a consequential risk that the accused might have to take into account that factor in deciding whether or not to give evidence but the weight to be given to that matter is, I am satisfied, quite low.

21 In my view once the jury hear appropriate directions from me as to the use to which the identification should be put and the dangers of identification which will bring home to them in no uncertain terms the risks of accepting Ms Egan’s act of identification of the accused as being the shooter, I am satisfied that the jury will not reason illogically or emotionally beyond perhaps the residual seductive effect of identification evidence. I am satisfied that the risk brought about by that seductive effect is such that it is small to the point of being miniscule when compared to the probative value of Ms Egan’s identification of the accused as being the shooter. The evidence will be admitted.

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