Regina v Nelson

[1999] NSWCCA 221

CITATION:	Regina v Nelson [1999] NSWCCA 221
FILE NUMBER(S):	CCA 60062/99
HEARING DATE(S):	2 August 1999
JUDGMENT DATE:	10 August 1999
PARTIES :	Regina v Robert Lloyd Nelson
JUDGMENT OF:	Newman J at 1; Sperling J at 2; Greg James J at 31

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/21/0065; 97/21/0692
LOWER COURT JUDICIAL OFFICER:	Grogan DCJ

COUNSEL:	J I Doris (Appellant) P G Berman (Crown)
SOLICITORS:	Neil J O'Connor & Associates (Appellant) S E O'Connor (Crown)l
CATCHWORDS:	CRIMINAL LAW - picture identification evidence, whether error in not excluding - whether verdict unsafe and unsatisfactory.
ACTS CITED:	Evidence Act 1995, ss 115(7), 137
CASES CITED:	Cook (1998) 126 NTR 17, Gipp (1998) 194 CLR 106, Jones (1997) 191 CLR 439, M (1994) 181 CLR 487, Richards (CCA (NSW), 27 November 1995, unreported)
DECISION:	Appeal against conviction dismissed; Application for leave to appeal against sentence dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60062/99

NEWMAN J
SPERLING J
GREG JAMES J

Tuesday 10 August 1999

REGINA v Robert Lloyd NELSON
JUDGMENT

1    NEWMAN J: I have had the advantage of reading in draft the reasons for judgment of Justice Sperling and I agree with the reasons he gives and the orders he proposes.

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IN THE COURT OF
CRIMINAL APPEAL

60062/99

NEWMAN J
SPERLING J
GREG JAMES J

Tuesday 10 August 1999

REGINA v Robert Lloyd NELSON
JUDGMENT

2    SPERLING J: On 16 October 1998, the appellant was convicted of the following offences in a trial before Grogan DCJ and a jury: first, that on 24 June 1996 at Holsworthy he stole motor vehicle registration no. TXM 901; secondly, that on 29 June 1996 at Birrong, being armed, he assaulted Lynne Williams with intent to rob her; thirdly, that on 29 June 1996 at Birrong, being armed, he robbed John Waterson; and, fourthly, that on 29 June 1996, being armed, he robbed Marie Nicolaou.

3    So far as concerns the events of 29 June 1996, the Crown case was as follows. The accused entered the Tuckerbag Supermarket at Birrong. He held a sawn-off shotgun against Ms Williams, an employee, demanding money from a cash register. She noticed a green coloured tattoo on the back of one of the appellant’s hands. The cash register failed to open.

4    Another employee, Mr Waterson, was then accosted by the appellant. Money was again demanded and was given to the appellant from one of the cash registers.

5    Another employee, Ms Nicolaou handed over further money on demand. She also noticed a green coloured tattoo on the back of one of the offender’s hands. The appellant had tattoos on his hands similar to those described by the witnesses.

6    On 30 June 1996, Mr Waterson made a picture identification of the appellant from eleven photographs shown to him by the police.

7    Many months later, Ms Williams, Ms Nicolaou and another employee who was in the store at the time, Ms Pignat, each, separately, failed to make a positive identification from a video of still photographs, although Ms Nicolaou selected two of the pictures as being similar to the robber, one of which was a picture of the appellant taken on 7 August 1996 after his arrest.

8    The appellant has appealed against the convictions relating to the offences alleged to have occurred on 29 June 1996. The grounds of appeal are as follows.

(1) That the trial judge wrongly admitted evidence of identification by photograph.

(2) That the convictions on all counts are unsafe and unsatisfactory.

Ground 1

9 Before the jury was empanelled, counsel for the appellant sought a ruling that the evidence of picture identification by Mr Waterson should be excluded. His Honour refused the application and gave reasons in a judgment published on 12 February 1999. Several grounds for exclusion of the evidence were advanced of which the only one now relied upon is that the evidence should have been excluded pursuant to the exercise of his Honour’s discretion under s 137 of the Evidence Act 1995.

10    The evidence tendered on the voir dire included statements by a number of Crown witnesses, a substantial portion of the transcript of evidence on the voir dire given at a previous trial, a series of still photographs shown by the police to Mr Waterson and part of a police note book. This evidence was, materially, to the following effect:

(a) Mr Waterson had the offender under observation for three to four minutes.

(b) He gave an oral description of the offender to the police (including approximate, age, height, build, hair colour and hair length) which included no unusual features. The offender was wearing sun glasses.

(c) At the time of the offence, the appellant was at large, having escaped from lawful custody the previous month. He was not recaptured until some weeks later.

(d) At the time of the offence the police had a photograph of the appellant taken at an earlier time. On 30 June 1996, Mr Waterson was shown a series of colour photographs which included the photograph of the appellant and photographs of other males of a similar age to that of the appellant. The photographs were all of the same style: face on, head and shoulders.

(e) Immediately before Mr Waterson looked through the photographs, the police officer said to him “John, if you saw a photograph of the man that held you up yesterday do you think you’d recognise him?” to which Mr Waterson replied that he would. The officer continued, “I have a number of pieces of paper here, each with pictures of males on them. Have a look at them and tell me if you see any person you recognise.”

(f) Mr Waterson selected the appellant’s photograph from the series and put it to one side. He then placed a further two photographs beside it and continued to look through the rest. He came to the end and said, “No, that is definitely him. Put the glasses on (meaning the sun glasses the offender was wearing) and that’s him. I’d rather not look at him actually, it gives me the creeps.”

11    It was submitted on appeal that the evidence was of very low probative value.

12    I recognise the limitations of the evidence. There are the inherent risks of error in picture identification generally. Mr Waterson was distressed at the time of the offence, when he had the offender under observation. There was no special facial or other feature in the offender’s appearance. The offender was wearing sun glasses which would have obscured his eyes and the adjacent area of the face.

13    It was also submitted that the probative value of the evidence was reduced by the words used by the police when Mr Waterson was asked to look at the pictures. I agree that the words used carried the implication that the police believed the photographs included a photograph of a person suspected of being the offender. That would have engendered in the mind of the witness an expectation that a photograph of the offender was likely to be there. There was then the risk that the witness would be influenced to select the photograph in the series which most resembled the offender rather than a photograph, if any, which strongly corresponded with the witness’ recollection of the offender’s appearance. I take these considerations into account.

14    Notwithstanding these considerations, the only finding reasonably open to the trial judge was, in my view, that the evidence had substantial probative value. That was particularly so when it was known that Mr Waterson’s evidence would be supported to some extent by other evidence, namely:

(a) Ms Williams and Ms Nicolaou observed a green tattoo on the back of the offender’s hand. The offender had a green tattoo on the back of each hand.

(b) Ms Nicolaou, some months later, selected two photographs from a series as depicting persons who resembled the offender. One of the two photographs was a photograph of the appellant.

15    As to unfair prejudice, the submissions on appeal were as follows. There would be evidence that the appellant had not yet been apprehended when a photograph of the appellant was shown to Mr Waterson by the police on 30 June 1996. The jury would, accordingly, infer that the appellant was known to the police at the time of the offence, and that he was adversely known to the police for this type of offence because the police would have included photographs only of likely suspects.

16    The second limb of this submission is a non sequitur and can be disregarded. I am prepared to accept for the purposes of the argument that it was to be anticipated that the jury would infer that the appellant was or was likely to have been adversely known to the police. That would be prejudicial to the appellant.

17    I am inclined to think that a jury to have reason to believe that the accused was or was likely to have been adversely known to the police prior to the offence is always unfairly prejudicial because of the risk that the jury might misuse that information as tendency evidence.

18    It might not be material that the police had no alternative but to proceed as they did, as was the case here. (The police had no way of knowing when the appellant would be apprehended. Meanwhile, using an existing photograph of the appellant for identification purposes was the only way for the police to find out if the appellant was the person to be charged with these offences.) I put that consideration aside.

19    For a jury to know that the accused has a prior criminal record or is adversely known to the police does not necessarily render the trial unfair. Take the ordinary case of a crime committed in prison. See also Cook (1998) 126 NTR 17 and Richards (CCA (NSW), 27 November 1995, unreported).

20 Where the prejudice arises from the use of a police photograph taken before arrest for the subject offence, s 115(7) operates. The jury is to be warned that they must not assume that the accused has a criminal record or has previously been charged with an offence. The section carries the expectation of the legislature that use of such a photograph will not necessarily render the evidence inadmissible. The second point to be made about the section is that the direction mitigates the prejudice, if it does not eradicate it. The direction was to be given in this case.

21    This was, in my view, a clear case. The trial judge could not reasonably have exercised his discretion otherwise than to hold that the probative value of the evidence was not outweighed by the danger of unfair prejudice.

22    Without intending any disrespect for Mr Doris’ careful argument, it is unnecessary, in these circumstances, to examine his Honour’s reasons for allowing the evidence.

23    Ground 1 fails.

Ground 2

24    The relevant test for miscarriage of justice in this case is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond a reasonable doubt that the accused was guilty: M (1994) 181 CLR 487, Jones (1997) 191 CLR 439; Gipp (1998) 194 CLR 106.

25    The argument was commendably limited in its scope. It was that the picture identification by Mr Waterson was insufficient to satisfy a jury beyond reasonable doubt that the appellant was the offender.

26    The points made in support of this ground are substantially the same as those made to impugn the probative value of Mr Waterson’s evidence under the first ground.

27    Mr Waterson’s evidence came out much as was anticipated when his Honour ruled on its admissibility. If anything, Mr Waterson pitched the level of confidence with which he had made the identification somewhat higher than appeared from the police record of the identification process. The tattoo evidence came out as anticipated. So too the resemblance evidence to which I have referred. There was no significant inconsistency in the descriptions of the offender given by the witnesses to the occurrence.

28    In the circumstances, Ground 2 is not made out.

Appeal against sentence

29    The application for leave to appeal against sentence arises only in the event of the appellant being successful in his appeal against conviction for the offences committed on 29 June 1996. That appeal having failed, the appeal against sentence does not arise for consideration.

Result

30    The orders I propose are as follows:

(1) Appeal against conviction dismissed.

(2) Application for leave to appeal against sentence dismissed.

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IN THE COURT OF
CRIMINAL APPEAL

60062/99

NEWMAN J
SPERLING J
GREG JAMES J

Tuesday 10 August 1999

REGINA v Robert Lloyd NELSON
JUDGMENT

31    GREG JAMES, J: I agree with the orders proposed by Sperling J and his reasons.

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