R v West

[1999] NSWCCA 325

CITATION:	R v West [1999] NSWCCA 325
FILE NUMBER(S):	CCA 60533/98
HEARING DATE(S):	16/09/99
JUDGMENT DATE:	21 October 1999
PARTIES :	Lee West (appellant) Regina (respondent)
JUDGMENT OF:	Sheller JA at 1; Grove J at 2; Hidden J at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/11/0220
LOWER COURT JUDICIAL OFFICER:	Herron DCJ

COUNSEL:	M Austin (appellant) M M Cunneen (respondent)
SOLICITORS:	Sydney Regional Aboriginal Corporation Legal Service (appellant) Director of Public Prosecutions (respondent)
CATCHWORDS:	Criminal law - evidence - identification of accused by police from bank security photos - whether admissible - whether opinion evidence - whether unfair/prejudicial
ACTS CITED:	Evidence Act 1995
CASES CITED:	R v Mundarra Smith [1999] NSWCCA 317
DECISION:	Appeal dismissed.

IN THE COURT OF

CRIMINAL APPEAL

60533/98

SHELLER JA
GROVE J
HIDDEN J

Thursday, 21 October 1999

REGINA v Lee WEST

JUDGMENT

1     SHELLER JA: I agree with Hidden J.

IN THE COURT OF
CRIMINAL APPEAL

60533/98

SHELLER JA
GROVE J
HIDDEN J

Thursday 21 October 1999

REGINA v LEE WEST

JUDGMENT

2     GROVE J : I agree with Hidden J.

IN THE COURT OF
CRIMINAL APPEAL

60533/98

SHELLER JA
GROVE J
HIDDEN J

Thursday, 21 October 1999

REGINA v LEE WEST

Reasons for judgment

3     HIDDEN J: The appellant, Lee West, was tried in the District Court with another man upon an indictment containing two charges: (1) robbery with corporal violence at the St George Bank at Ramsgate on 5 December 1997; and (2) on the same day, knowingly being carried in a Holden Commodore sedan which had been taken without its owner’s consent.

He was found guilty of both charges and custodial sentences were imposed. He appeals against conviction only.

The evidence

4     In the early afternoon of Friday, 5 December 1997 two men entered the St George Bank at Ramsgate Road, Ramsgate. One remained in the customer area while the other jumped over the counter, struck one of the tellers and seized a sum of money. The two men left the bank and were seen to drive away in the vehicle the subject of the second count, which was parked nearby and in which someone already occupied the driver’s seat.

5     The only issue at the trial was whether the appellant and his co-accused had been correctly identified as the men involved in the robbery. The appellant was said to be the man who had remained in the customer area of the bank. The witnesses to the robbery and the escape of the two men were shown arrays of photographs prepared by the police on video-tape. One of the tellers identified a photograph of the co-accused as the man who had jumped over the counter. Otherwise, none of the witnesses could identify either of the two men. However, the robbery was filmed by a bank security camera, and a number of police officers who had had prior contact with the appellant and his co-accused identified them in those photographs. This was the evidence upon which the case against the appellant turned.

6     The appellant gave no evidence and called no witnesses. However, he relied upon an electronically recorded interview conducted after his arrest, in which he denied any knowledge of the robbery and asserted that he was not in Sydney at the time. His case was developed though cross-examination of the police officers to whom I have referred, questioning the reliability of their identification of him in the bank security photographs.

7     The officer in charge of the investigation was Senior Constable Lynch. It was his evidence that in the afternoon of 8 December 1997, three days after the robbery, he obtained one of the bank security photographs. He immediately recognised the appellant as one of the men in it. He had spoken to him some months earlier, on 30 April 1997, at Glebe Police Station, although his evidence did not disclose how long he was in his company. He had also seen the appellant earlier on 8 December at the intersection of Elizabeth and Liverpool Streets Sydney, near the Downing Centre court complex.

8     When the appellant was at Glebe Police Station on 30 April, he was also seen by Detective Sergeant Lynch (apparently no relation to Senior Constable Lynch), Detective Senior Constable Porter and Senior Constable Shoobridge. Detective Senior Constable Porter said that he saw the appellant during the afternoon and the evening of that day, as did Detective Sergeant Lynch. Senior Constable Shoobridge said that he was in the appellant’s company for several hours. Detective Sergeant Lynch saw him again on three separate occasions during 7 August. He also saw him in the vicinity of the Downing Centre courts on the morning of 8 December. Detective Senior Constable Porter and Senior Constable Shoobridge were also at the Downing Centre that day and both saw the appellant inside the court building.

9     On 9 December, again at the Downing Centre, Senior Constable Lynch showed the bank security camera photograph to the other three police officers. Each gave evidence that he immediately recognised one of the men depicted as the appellant. Before the jury there was no evidence about the circumstances in which the appellant came to be at Glebe Police Station on 30 April or was seen by Detective Sergeant Lynch on 7 August. However, there was evidence that on 8 and 9 December he was at the Downing Centre as a defence witness in a trial which was then in progress.

10     By 12 December a number of further bank security photographs had been developed. On that day, Senior Constable Lynch showed all the photographs to Constable Carrick, who was stationed at Redfern. He gave evidence that he recognised the appellant in them. He said that he had seen and spoken to the appellant in the Redfern area a number of times during 1997. He also gave no evidence of the circumstances of those encounters, except to say that on several of those occasions he gave the appellant traffic infringement notices.

11     The other police officers were also shown the other photographs but, of course, the significant evidence was their recognition of the appellant in the single photograph which each of them was shown on 9 December.

The appeal

12     The primary ground of appeal was that the evidence of the police officers’ identification of the appellant from the bank security camera photographs should have been excluded. This appeal was heard together with two others, in which it was argued that evidence of this kind is inadmissible for the same reasons as were advanced in the present case. One of those cases was R v Mundarra Smith [1999] NSWCCA 317 and Sheller JA dealt with the argument at paragraphs 12 to 24 of his judgment in that case, rejecting it. I respectfully agree with what his Honour has written and there is no need to repeat it here.

13     As in Smith, it was also argued on the present case that the trial judge ought to have excluded the evidence on the basis that its probative value was outweighed by the danger of unfair prejudice to the appellant: s137 Evidence Act 1995. Clearly, there was a danger of prejudice arising from the fact that the identifying witnesses were police officers, although the evidence was led in such a way as to minimise that prejudice as far as it could be. Nevertheless, its probative value was high. In determining to admit the evidence, the learned trial judge performed the balancing exercise required by s137 and I am not persuaded that he fell into error in his approach to the matter. This ground of appeal is not made out.

14     There was also a ground of appeal that the jury’s verdicts are unreasonable and cannot be supported, having regard to the evidence. However, this ground was pressed only if the previous ground were successful, in which event there would clearly be insufficient evidence to support the convictions. That being so, this ground also must fail.

15     I would propose that the appeal be dismissed.

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