SBT v Colvin
[2021] ACTCA 40
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | SBT v Colvin |
Citation: | [2021] ACTCA 40 |
Hearing Date: | 19 May 2021 |
DecisionDate: | 3 December 2021 |
Before: | Burns, Wigney and Abraham JJ |
Decision: | See [96]-[99] |
Catchwords: | APPEAL – appeal from Supreme Court of ACT – where appellant convicted of theft – where appellant is a young person – whether primary judge erred in concluding that identification or recognition evidence was properly admitted in the magistrates court – whether appellant’s conviction was unsafe and unsatisfactory EVIDENCE – identification or recognition evidence – whether identification or recognition evidence of police officers was relevant in accordance with Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50 – whether s 78 of the Evidence Act 2011 (ACT) applies to identification or recognition evidence of police officers – where evidence not admissible pursuant to s 78 of the Evidence Act 2011 (ACT) EVIDENCE – identification or recognition evidence – whether identification or recognition evidence should have been excluded pursuant to s 137 of the Evidence Act 2011 (ACT) – whether probative value of evidence was outweighed by the danger of unfair prejudice – where probative value of evidence was found to be weak – where danger of unfair prejudice was real and substantial – where evidence ought to have been excluded pursuant to s 137 of the Evidence Act 2011 (ACT) |
Legislation Cited: | Criminal Code 2002 (ACT) s 308 Evidence Act 2011 (ACT) ss 76, 78, 137 Supreme Court Act 1933 (ACT) s 37E |
Cases Cited: | Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; 154 CLR 627 Dyers v The Queen [2002] HCA 45; 210 CLR 285 Smith v The Queen [2001] HCA 50; 206 CLR 650 |
Parties: | SBT (Appellant) David Colvin (Respondent) |
Representation: | Counsel J Cooper (Appellant) T Hickey (Respondent) |
| Solicitors Aboriginal Legal Service (NSW/ACT) (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 34 of 2020 |
Decision under appeal: | Court: ACT Supreme Court Before: Mossop J Date of Decision: 7 August 2020 Case Title: SBT v Colvin Citation: [2020] ACTSC 216 |
BURNS J:
I have had the advantage of reading the reasons of Wigney and Abraham JJ in draft. In my opinion there is no significant difference between their reasons in those areas they separately address, except for the final orders they propose. I agree that the appeal should be allowed for the reasons given by Wigney J and I agree with the orders his Honour proposes.
| I certify that the preceding one [1] numbered paragraph is a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 3 December 2021 |
WIGNEY J:
Introduction
The appellant, a young person, was found guilty of theft and convicted by a magistrate in the ACT Childrens Court, contrary to s 308 of the Criminal Code 2002 (ACT). He subsequently appealed against that conviction. He contended, amongst other things, that the magistrate erred in admitting identification or recognition evidence by a police officer and that the finding of guilt was in any event unsafe and unsatisfactory. The primary judge dismissed the appellant’s appeal: SBT v Colvin [2020] ACTSC 216 (Judgment). The appellant appealed the primary judge’s judgment pursuant to s 37E of the Supreme Court Act 1933 (ACT).
The appeal raises two issues.
The first issue is whether the primary judge erred in concluding that the identification or recognition evidence was properly admitted by the magistrate. That issue in turn raises three questions: first, whether the evidence was relevant; second, whether the evidence was opinion evidence which did not fall within any relevant exception to, and was therefore rendered inadmissible by, the opinion rule in s 76 of the Evidence Act 2011 (ACT); and third, if the evidence was otherwise admissible, whether it should have been excluded pursuant to s 137 of the Evidence Act because its probative value was outweighed by the danger of unfair prejudice to the appellant.
The second issue, which only arises if it is found that the primary judge was correct in finding that the identification or recognition evidence was properly admitted, is whether the appellant’s conviction was unsafe and unsatisfactory. It was common ground before the primary judge and in this Court that the appellant’s conviction rested almost entirely on the identification or recognition evidence.
Proceedings before the magistrate
The allegation against the appellant was that, on 26 May 2019, he stole a black backpack from the Belconnen shopping centre. The backpack contained a number of valuable items. There was no dispute that a person stole the backpack from the shopping centre on the day in question. The only issue was whether the appellant was that person.
The prosecutor’s case depended on two categories of evidence.
The first was evidence of admissions said to have been made by the appellant. The magistrate admitted that evidence over objection. It is now common ground that the magistrate erred in admitting the evidence of admissions. That evidence can accordingly be put to one side.
The second category of evidence was evidence of two police officers, Constables Colvin and Hill, the effect of which was that the person carrying a black backpack depicted in closed circuit television (CCTV) footage (and still images taken from that footage) recorded at the shopping centre at the time of the theft was the appellant. The appellant objected to that evidence. The magistrate heard the evidence of both police officers in that respect on a voir dire and, after hearing argument, admitted it over the appellant’s objections.
Constable Colvin
The first of the two officers, Constable Colvin, obtained the CCTV footage from the shopping centre. His evidence was that when he viewed the footage he “formed the conclusion” that the person depicted in the footage stealing the backpack “was either [the appellant] or [the appellant’s brother]”. Constable Colvin subsequently took some still images from the CCTV footage and circulated internally a document called a “look out to be kept for” which contained some of those stills.
Ten days later, on 5 June 2019, Constable Colvin was on duty at the Belconnen Police Station. Another officer, Constable Hill was also on duty that day. It would appear that Constable Hill had arrested the appellant in respect of a different matter and that, as a result, the appellant was in the “watchhouse” on 5 June 2019. Constable Colvin’s evidence was that when he saw the appellant in the watchhouse he “formed the belief that the young person that was in front of me on the day was the same person that was in the CCTV footage”.
When asked, in chief, why he formed the belief that the appellant, and not his twin brother, was the person depicted in the CCTV footage, his evidence was that his belief was based on a conversation he had had with Constable Hill in which Constable Hill had said that the appellant’s twin brother “has shoulder length hair, and is heavyset compared to [the appellant], who has a smaller build”. Constable Colvin’s evidence was that, on the day that he observed the appellant in the watchhouse, “he had what I would say is an identical haircut to the male in the footage; he also had a thin, wispy moustache, as did the male in the footage; and of a smaller build as the male in the footage as well”.
It is also worth noting that Constable Colvin acknowledged, in his evidence-in-chief, that it “had been some time since [he] had dealt with the two boys [the appellant and his twin brother]”.
In cross-examination, Constable Colvin said that he had seen the appellant “[a]t least three times” in his life. He had seen the appellant’s brother the same number of times. He estimated that it had been “[m]aybe a month or two” since he had seen the appellant and his brother. On the last occasion he had seen them, it “wouldn’t have been [exposed to them for] more than half an hour”. That was the only occasion he had seen them “side to side”. Constable Colvin agreed that the appearances of the appellant and his brother could have changed since his last interaction with them.
Importantly, Constable Colvin also conceded that when he first watched the CCTV footage, he could not tell whether it was the appellant or his brother who was depicted in the footage. He accepted that it was his conversation with Constable Hill that “confirmed [the appellant’s] identity”.
Constable Hill
Constable Hill was on duty on 28 May 2019 when he saw the “look out to be kept for” document which had been created by Constable Colvin. When he saw the images that were included in that document, he formed a view as to who was depicted in those images. That view was that he “suspected it to be either [the appellant’s brother] or [the appellant], as they are twins”. His evidence was that he had dealings with the appellant’s brother in the past and had “viewed images of [the appellant] on police indices in relation to other police incidents”. He had not, however, “actually personally dealt with” the appellant before.
Constable Hill’s evidence was that, on 5 June 2019, just over a week after he had viewed the images on the “look out to be kept for” document, he attended a house in Ngunnawal in respect of an unrelated incident. At that house he saw the appellant, as well as the appellant’s brother, sisters and mother. He observed that the appellant had “significantly shorter hair” than his brother and that the appellant’s brother was of a “solider (sic) build” than the appellant. The appellant at the time was “quite slim”. Constable Hill also said that the appellant’s hair was “significantly shorter than what it is today” – meaning the date of the hearing (4 February 2020).
Constable Hill gave evidence that at some later point in time – it is unclear precisely when – after “re-observing the look out to be kept for”, he was “very satisfied that it was [the appellant] in the look out to be kept for that [he] had observed earlier due to the slim build and the shorter hair compared to what [he] had seen with [the appellant’s brother] that day being of solider (sic) build with longer hair”.
In cross-examination, Constable Hill confirmed that he had only seen the appellant “in passing” and that on the occasions prior to 5 June 2019 when he had seen the appellant and his brother together, he only had “fleeting glimpses” of the two. He could not recall when those occasions were, other than to say that they were in the “last two to three years”. When he visited the house on 5 June 2019, the appellant and his brother were side-by-side for “a brief matter of seconds”. When Constable Hill saw the appellant and his brother together on that occasion, the “bag snatch didn’t come to mind” because he was dealing with another incident. It was only after he looked at the still shots at some later point in time that he was able to “form that view”.
The magistrate’s decision
As already noted, the identification or recognition evidence of Constables Colvin and Hill was objected to by the appellant. The principal basis of the objection was that their evidence was irrelevant. That was said to be because the constables simply purported to identify the appellant from the stills taken from the CCTV footage. It was submitted that the constables were in no better position than the magistrate to form a view as to whether the appellant was the person depicted in the stills.
The appellant relied on the decision of the High Court in Smith v The Queen [2001] HCA 50; 206 CLR 650 in support of the submission that the identification or recognition evidence of Constables Colvin and Hill was irrelevant. That decision will be considered in more detail later in these submissions. It suffices at this point to note that, while the magistrate overruled the objection and admitted the evidence, it is not entirely clear precisely how he dealt with the objection based on Smith. Two observations made by the magistrate, however, would suggest that his Honour misunderstood the nature of the objection.
First, the magistrate noted that, while he had seen both the appellant and his brother “in court at various times throughout the year”, nevertheless “the officers’ evidence is more reliable than mine in that regard, because my ability to recollect is not as good as that evidence”. The magistrate also referred to his own recollection that while it was difficult to tell the appellant and his brother apart, his recollection was that “at one stage in the course of the previous year [the appellant’s brother] had longer hair and a heavier build” than the appellant. The issue in Smith was whether the police officers whose evidence was in question were in any better position than the jury to compare the image of the person depicted in a photograph and the appearance of the accused and form a view as to whether the person in the photograph was the accused. That had nothing to do with whether the jury had seen the accused before. The magistrate, however, seems to have erroneously approached the objection on the basis that the issue as to whether he was in as good a position as the police officers to assess whether the appellant was the person in the photograph was somehow to be based on his, that is the magistrate’s, prior observations of the appellant and his brother.
Second, the magistrate appears to have concluded that the “image taken back in June [2019] is different to the presentation of the [appellant] today”. That observation again appears to have been directed to the question whether the constables were in any better position than his Honour to form a view about whether the person depicted in the photograph was the appellant because, for example, the appellant’s appearance had changed between the date of the alleged offence and the appellant’s appearance in court. The difficulty, however, is that it would appear that his Honour’s observation was based on the assumption or premise that the appellant was the person depicted in the “image taken back in June”. That, however, was the critical fact in issue.
It is not particularly fruitful to give any further consideration to the magistrate’s reasons for admitting the identification or recognition evidence over the appellant’s objection. That is because the main question for the Court on this appeal is whether the primary judge erred in upholding the magistrate’s decision and finding that the evidence was properly admitted. The magistrate’s reasons for admitting the evidence are not particularly significant in addressing that question. In any event, with the greatest respect to the magistrate, his Honour’s reasons are far from pellucid. The most that could be said is that the magistrate seems to have been persuaded by what he considered to be the strength or cogency of the evidence.
Grounds of appeal before the primary judge
There were three grounds of appeal before the primary judge, reflected in the amended notice of appeal dated 14 May 2020: first, that the “finding of guilty is unsafe and unsatisfactory”; second, that the “Magistrate erred in admitting the police recognition evidence”; and third, that the “Magistrate erred in admitting the admissions”.
The third ground of appeal was conceded by the respondent. The primary judge nevertheless proceeded to address the balance of the appeal because “the reasons of the magistrate were not dependent upon the evidence of the admissions”: Judgment at [3].
In relation to the second ground of appeal, the primary judge noted that while the appellant’s objection to the identification or recognition evidence before the magistrate was that the evidence was irrelevant based on the decision in Smith, the appellant had raised two additional arguments on appeal as to why the evidence should have been rejected or excluded. The first argument was based on the submission that the evidence of the constables was opinion evidence which did not fall within the lay opinion exception to the opinion rule in s 78 of the Evidence Act and was therefore inadmissible by reason of s 76 of the Evidence Act. The second argument was that the probative value of the evidence was outweighed by the danger of unfair prejudice to the appellant and therefore should have been excluded pursuant to s 137 of the Evidence Act.
As for those two additional arguments, the primary judge observed that it “is highly undesirable that parties raise for the first time on appeal matters not raised before the magistrate hearing the case” and that “[t]o permit such a course will have the effect of encouraging parties not to raise all of the available arguments and to not provide proper assistance to the magistrate” – a course which his Honour said was “clearly contrary to the proper administration of criminal justice”: Judgment at [61]. His Honour found, however, that it was “unnecessary in this case to take the issue further as, when considered, the two additional matters would not, if permitted to be raised, alter the outcome of the appeal”: Judgment at [61]. His Honour then proceeded to consider the two arguments. The respondent did not argue, in this appeal, that the primary judge should not have permitted the appellant to raise the two additional arguments.
The primary judge’s findings and reasons
The primary judge found that the identification or recognition evidence given by Constables Colvin and Hill was admissible.
As for the argument based on Smith, the primary judge found that there were three features of the evidence which “indicate that it is not within the narrow class of case identified in Smith v The Queen, where the evidence is based upon material no different in any substantial way from what is available to the finder of fact”: Judgment at [59]. Those three features were: first, that there “was direct evidence from Constable Hill that the appellant’s hair was shorter at the time that he observed him on 5 June 2019 than when he appeared in court”; second, in “contrast to Smith v The Queen, there was no photograph of the appellant proximate to the time of the alleged offence”; and third, that there was “an additional issue because of the existence of an identical twin to the appellant and the potential for that to give rise to a doubt about the identity of the offender” and that, because the appellant’s twin was not in court, “[t]he capacity to exclude beyond a reasonable doubt the possibility that the person in the CCTV was the appellant’s twin could not be done by observing the twin in court”: Judgment at [58(c)]. It followed that the “evidence was not inadmissible because of its lack of relevance”: Judgment at [59].
As for the argument that the evidence was inadmissible opinion evidence, the primary judge found it unnecessary to determine whether the evidence was evidence of fact or opinion. That was essentially because his Honour found that if it was opinion evidence, it was admissible evidence of a lay opinion within s 78 of the Evidence Act.
Section 78 of the Evidence Act provides as follows:
The opinion rule does not apply to evidence of an opinion expressed by a person if:
(a)the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and
(b)evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event.
The primary judge found that the evidence of each of the constables fell within s 78 of the Evidence Act for the following reasons (Judgment at [74]):
In the present case each officer was giving an opinion about the similarity between a remembered impression of the appearance of the appellant and the images taken from the CCTV footage. That was the “matter” about which the opinion was expressed. It was clearly based upon what the officer "saw … or otherwise perceived" about the appearance of the appellant and the person shown in the photograph. Therefore, it was within the scope of s 78 and hence not inadmissible under s 76.
The primary judge considered that his Honour’s finding in that regard was consistent with findings made in Nguyen v The Queen [2007] NSWCCA 363; 180 A Crim R 267 at [30]-[31] and Kheir v The Queen [2014] VSCA 200; 43 VR 308 at [65]-[68]. Significantly, however, his Honour also appears to have rejected the reasoning of Kirby J in Smith as an “unwarranted qualification” of s 78: see Judgment at [68]-[69]. Unlike the majority judges in Smith, Kirby J found that the evidence of the police officers was relevant. Justice Kirby found, however, that the evidence was opinion evidence which was not lay opinion evidence and was therefore excluded by the opinion rule.
As for the argument that the evidence should have been excluded pursuant to or by operation of s 137 of the Evidence Act, the primary judge found that the probative value of the evidence of the constables was not “inherently low” and that there was in effect no danger of unfair prejudice because the evidence was to be considered by a magistrate and not a jury. His Honour reasoned as follows (Judgment at [81]):
The position is therefore that the probative value of the evidence, particularly of Constable Hill, was not inherently low. That was because of the recency and circumstances of contact with the appellant and the quality of the CCTV images. Having regard to the fact that the proceedings were not before a jury, the risk of unfair prejudice to the appellant was low because the magistrate was in a position to properly consider the evidence in light of the submissions made. Had the application of s 137 been raised before the magistrate, the evidence was not such that it would have been required to be excluded.
The primary judge’s reasons in relation to the first ground of appeal, the unsafe and unsatisfactory ground, were short. His Honour found, in effect, that once it was accepted that the recognition evidence of the police officers was admissible, it was open to find the offence proved beyond reasonable doubt: Judgment at [82].
Grounds of Appeal
The appellant relied on three grounds of appeal in this Court.
The first ground of appeal is that the primary judge “erred in failing to conduct the appeal by way of a rehearing”. The appellant argued, in support of this ground, that the primary judge restricted his Honour’s enquiry to “arguments raised in support of the objection below” and therefore did not conduct “an ‘independent review’ of the impugned evidence considered against [the] operative provisions” of Pt 3 of the Evidence Act.
The second ground of appeal is that the primary judge “erred in finding that the evidence of recognition/identification was admissible”. The appellant argued that the primary judge erred in four ways in that regard: first, in finding that the evidence was relevant; second, in failing to find that the evidence was evidence of an opinion; third, in finding that, if it was opinion evidence, it was admissible as lay opinion evidence pursuant to s 78 of the Evidence Act; and fourth, in failing to find that the evidence should have been excluded pursuant to s 137 of the Evidence Act.
The third ground of appeal was that the primary judge erred in failing to find that the conviction was unsafe and unsatisfactory. The appellant submitted that it was not open to convict because the only evidence of identification was the “logically weak and unconvincing” evidence of Constable Hill and Constable Colvin.
It is convenient to consider the second ground of appeal first as it was the ground upon which almost all of the argument focussed.
Ground 2 – Admissibility of the identification or recognition evidence
It is convenient to first consider the admissibility of the evidence of Constables Colvin and Hill to the effect that the appellant was the person depicted in the CCTV footage or the stills taken from it. That involves considering the following: first, whether the evidence was relevant; second, whether the evidence was opinion evidence; third, if the evidence was opinion evidence, whether it was lay opinion evidence within s 78 of the Evidence Act; and fourth, whether the probative value of the evidence was outweighed by the danger of unfair prejudice to the appellant.
Was the evidence relevant?
It is difficult to see how the facts of this case could be said to be materially different to the facts in Smith which led the majority in the High Court to conclude that the evidence of the police officers, which was that the person depicted in security camera footage at the time of a robbery was the accused, was irrelevant.
In Smith, the question for the jury was “whether they were satisfied, to the requisite standard, that the person then standing trial before them is shown in those [the bank’s security camera] photographs”: Smith at [8] (emphasis in original). In this case, the question for the magistrate, as the tribunal of fact, was whether he was satisfied to the requisite standard that the appellant then standing trial before him was the person depicted in the CCTV footage.
In Smith, both the police officers gave evidence that they had had previous dealings with the accused and that they recognised the person depicted in the bank’s security photographs as the accused. The majority in Smith noted that “[n]either police officer suggested that he had any basis for concluding that it is the [accused] depicted in the bank photographs other than the knowledge that he had gained of the [accused’s] physical appearance during those earlier encounters and whatever was revealed to a person who looked at the photographs that were produced in evidence” and that “[t]here was no suggestion that the physical appearance of the [accused] had changed materially between the time when the photographs were taken and the time of the trial”: Smith at [9]. It was also noted that the jurors had spent as much, if not more, time in the accused’s presence during the trial as the police officers. In those circumstances, the majority observed that the “police witnesses were in no better position to make a comparison between the appellant and the person in the photographs than the jurors” and that “the data available to the jury for its resolution was no different in any significant way from the data upon which the police officers based their asserted conclusion”: Smith at [9].
The majority in Smith reasoned as follows as to why, in those circumstances, the evidence of the police officers was irrelevant (at [11]):
Because the witness’s assertion of identity was founded on material no different from the material available to the jury from its own observation, the witness’s assertion that he recognised the appellant is not evidence that could rationally affect the assessment by the jury of the question we have identified. The fact that someone else has reached a conclusion about the identity of the accused and the person in the picture does not provide any logical basis for affecting the jury’s assessment of the probability of the existence of that fact when the conclusion is based only on material that is not different in any substantial way from what is available to the jury. The process of reasoning from one fact (the depiction of a man in the security photographs) taken with another fact (the observed appearance of the accused) to the conclusion (that one is the depiction of the other) is neither assisted, nor hindered, by knowing that some other person has, or has not, arrived at that conclusion. Indeed, if the assessment of probability is affected by that knowledge, it is not by any process of reasoning, but by the decision maker permitting substitution of the view of another, for the decision-maker's own conclusion.
The evidence of the constables in this case was a little less straightforward than the evidence of the police officers in Smith. Neither gave evidence, in terms, that they recognised the person depicted in the CCTV footage as the appellant. Rather, both gave evidence that at an earlier point in time they formed a view that they recognised the person depicted in the CCTV footage as either the appellant or his twin brother. The effect of their evidence was that they subsequently, essentially by a process of deduction based on some additional information, formed the view that the person in the photograph was the appellant, not the appellant’s twin brother. In the case of Constable Colvin, the additional information was that Constable Hill told him that the appellant’s brother had longer hair and was more heavyset than the appellant. In the case of Constable Hill, the additional information was his own observation, having seen both the appellant and his brother just over a week after the alleged offence, that the appellant’s brother had longer hair and was of a “solider (sic) build” than the appellant.
Nevertheless, as was the case in Smith, the ultimate effect of the evidence of both Constable Colvin and Constable Hill was that they recognised the appellant as the person depicted in the CCTV footage. As was also the case in Smith, their evidence to that effect was based on nothing more than the knowledge they had gained of the appellant’s physical appearance during their earlier encounters with the appellant. And, as was the case in Smith, the magistrate had probably spent as much time observing the appellant during the hearing as had the constables in their earlier fleeting encounters with the appellant.
The primary judge appears to have distinguished this case from Smith on three bases.
The first distinguishing feature was said to be that there was direct evidence from Constable Hill that the appellant’s hair was significantly shorter at the time that Constable Hill observed him on 5 June 2019 than when he appeared in court. Constable Hill did indeed give evidence to that effect. It is, however, difficult to accept that the fact that the appellant had shorter hair at a time closer to the commission of the alleged offence (and the time that the CCTV footage was taken) meant that the appellant’s appearance had changed materially between the time that the CCTV footage was taken and the time of the trial. The hearing before the magistrate took place only nine months after the date of the alleged offence. It is equally difficult to accept that the fact that Constable Hill was able to make that observation meant that he was in a materially better position than the magistrate to make the comparison between the appellant and the person depicted in the CCTV footage.
It should also perhaps be added in this context that there would have been no basis for any objection had the prosecutor simply adduced evidence from Constable Hill that he had seen the appellant at a time closer to the time of the alleged offence and that his hair was shorter than it was as at the date of the hearing. The magistrate would have been entitled to take that evidence into account when comparing the appellant’s appearance, at the date of the hearing, to the appearance of the person in the CCTV footage. That, however, is different to admitting evidence from Constable Hill that he recognised the person depicted in the CCTV footage as the appellant. The same can be said about Constable Colvin’s evidence to the same effect.
The second distinguishing feature was said to be that, in contrast to Smith, there was no photograph of the appellant proximate to the time of the alleged offence. It is true in this case that there was no photograph of the appellant at a time proximate to the alleged offence. That is because, for reasons not known or not explained, the prosecutor did not tender any such photograph. It is equally true that there appears to have been such a photograph in Smith, though that is apparent only from the judgment of the Court of Criminal Appeal. The photograph was not referred to in the judgments in the High Court and none of the reasoning in those judgments hinged in any way on the existence of such a photograph. It cannot, in those circumstances, be accepted that the fact that there was no photograph of the appellant at a time proximate to the offence was a relevant or material feature which distinguished this case from Smith.
The third distinguishing feature was said to be that the question whether the person depicted in the CCTV footage was the appellant was complicated by the fact that the appellant had a twin brother. The primary judge reasoned, in that regard, that the “capacity to exclude beyond a reasonable doubt the possibility that the person in the CCTV was the appellant’s twin could not be done by observing the twin in court”: Judgment at [58(c)].
It may perhaps be accepted that the issue in this case was slightly complicated by the fact that the appellant had a twin brother. The fact remains, however, that the question for the magistrate was whether he was satisfied to the requisite standard that the appellant then standing trial before him was the person depicted in the CCTV footage. That required the magistrate, as a first step, to reason from one fact (the depiction of the person in the CCTV footage) taken with another fact (the magistrate’s own observations of the appearance of the appellant) that the appellant was the person depicted in the CCTV footage. To the extent that the issue as to the appellant’s twin brother was raised, it would perhaps have been open to the prosecutor to seek to exclude the possibility that the person depicted in the photograph was the appellant’s twin brother by adducing evidence from Constable Hill, who had seen the appellant’s brother close to the time of the alleged offence, to the effect that appellant’s brother had longer hair, and was of a more solid build, than the person depicted in the photograph.
In the circumstances it may perhaps be accepted that Constable Hill, at least, was in a better position to make a comparison between the appellant’s brother and the person depicted in the CCTV footage. It does not follow, however, that Constable Hill or Constable Colvin were in a better position than the magistrate to make a comparison between the appellant and the person depicted in the footage.
It follows that, contrary to the conclusion reached by the primary judge, this case was not relevantly distinguishable from Smith.
More significantly, there was and is, in all the circumstances, no basis for concluding that Constable Colvin and Constable Hill were in any better position than the magistrate to make a comparison between the appellant and the person depicted in the CCTV footage. It follows that the evidence of both Constable Colvin and Constable Hill to the effect that they recognised the person in the CCTV footage to be the appellant was inadmissible as being irrelevant for the same reason as the evidence in Smith was held to be inadmissible. The primary judge erred in concluding otherwise.
It is, in light of that conclusion, strictly unnecessary to go on to consider whether the evidence, if relevant, was nonetheless inadmissible opinion evidence. It is, however, of some utility to consider that issue, particularly given that the respondent may apply for and be granted leave to appeal this decision in the High Court. The issue concerning relevance is not entirely free from doubt and the High Court may take a different view.
Was the evidence opinion evidence?
The primary judge did not make any finding in respect of this question. His Honour noted that “the line between opinion evidence and evidence of fact is not always clearly defined”: Judgment at [63]. So much so may be accepted. In Smith, Kirby J accepted that the question is “one of degree rather than of kind” and that the “difficulty of classification arises from the fact that, in one sense, all evidence is of the opinion of the deponent” because it “involves inferences or conclusions drawn from mental impressions of existing phenomena and past experience”: Smith at [52]. Nevertheless, his Honour noted (at [57]) that “identification evidence of the kind offered by the two police officers has normally been classified as opinion rather than factual evidence”. His Honour found (at [58]) that, consistent with that “trend of authority”, the evidence was opinion evidence.
The same conclusion was reached by the Court of Criminal Appeal of the Supreme Court of New South Wales in respect of similar recognition or identification evidence from a photograph in R v Drollet [2005] NSWCCA 356 at [56]-[57] (Simpson J, McClellan CJ at CL and Rothman J agreeing).
The better view, being the view also consistent with the finding by Kirby J in Smith, is that the evidence in question in this case was opinion evidence. It is tolerably clear that the effect of the evidence of both Constable Colvin and Constable Hill was that they had formed the view or belief that the appellant was the person in the CCTV footage based on their encounters with the appellant and other information available to them – in Constable Hill’s case, his observations concerning the comparative appearance of the appellant’s brother, and in Constable Colvin’s case, the information provided to him by Constable Hill about the comparative appearance of the appellant’s brother. As in Smith, their evidence involved “inferences or conclusions drawn from mental impressions of existing phenomena and past experience”. In simple terms, their evidence plainly involved a process of deduction and was therefore opinion evidence.
Was the evidence lay opinion evidence within s 78 of the Evidence Act?
The question whether s 78 of the Evidence Act applies to identification or recognition evidence of the type given by the constables in this case is by no means straightforward. Nor have previous decisions of appeal courts been entirely consistent in relation to the issue.
The majority judges in Smith did not have occasion to consider whether the evidence of the police officers in question was opinion evidence or lay opinion evidence. That is because their Honours found that the evidence was irrelevant and therefore inadmissible in any event. Justice Kirby, however, clearly found that the evidence was not lay opinion evidence. The terms of s 78 were set out earlier in these reasons. Justice Kirby found, in effect, that the relevant “matter or event” referred to in s 78 must be the, or a, “matter or event” which is in issue in the proceeding. His Honour reasoned as follows (at [60]):
Neither police officer was present at the “matter or event” in question in the appellant’s trial, namely the robbery. Although the security photographs record the robbery taking place, the opinion of the police officers is “based on” the photographs and not, as such, “based on” the robbery itself which they did not see, hear or otherwise perceive. The Australian Law Reform Commission’s report makes it clear that this provision of the Act was addressed, essentially, to the opinion of eye-witnesses. It exists to allow such witnesses to recount, as closely as possible, “their original perception [so as] to minimise inaccuracy and encourage honesty”. It is important to note that the requirements for the applicability of s 78 of the Act are cumulative (and) [sic]. Neither the language of the Act governing the reception of lay opinion evidence, nor the purposes of those provisions as explained by the Commission, justifies treating the opinions expressed by the two police officers as falling within a permissible exception.
(Footnote omitted.)
In Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352, the High Court (French CJ, Heydon and Bell JJ at [42]-[43], Gummow J at [77] and Crennan J at [83] relevantly agreeing) expressly or implicitly agreed with or approved of Kirby J’s reasoning in Smith. The issue in Jackson was whether a note made by ambulance officers that, on one view, expressed an opinion about how the respondent had sustained an injury, was admissible as lay opinion evidence under s 78 of the Evidence Act 1995 (NSW) (Evidence Act (NSW)), which is in the same terms as s 78 of the Evidence Act. It was held (at [41]) that s 78 “only applies to opinions given by those who actually witnessed the event about which the opinion is given” and (at [42]) that the relevant “matter” about which the opinion was expressed was the respondent’s fall, which the ambulance officers had not perceived personally. The evidence was accordingly not admissible under s 78.
The reasoning of Kirby J was also implicitly approved and applied by Simpson J (McClellan CJ at CL and Rothman J agreeing) in the Court of Criminal Appeal of the New South Wales Supreme Court in Drollet at [41]. Simpson J concluded (at [63]) that the opinion evidence of the witness in question, which identified the person in a video as being the accused, was “not necessary to obtain an adequate account or understanding of [the witness’] perception of any matter or event”. That conclusion was consistent with an earlier decision of her Honour, in R v Leung [1999] NSWCCA 287; 47 NSWLR 405 in which her Honour said (at [33]):
Put more simply, s 78 is designed to permit evidence of opinion that would facilitate the understanding of evidence otherwise relevant and admissible. The section assumes that the matter or event as perceived by the witness is relevant to the proceeding. That is the primary evidence. The opinion evidence is admissible as incidental to an understanding of the primary evidence.
In Leung, Spigelman CJ (at [1]) and Sperling J (at [67]) reserved their position as to the effect and scope of s 78 of the Evidence Act (NSW).
The primary judge appears to have considered that the reasoning of Kirby J in Smith was wrong because it “reads into [s 78] a qualification that the ‘matter or event’ be a matter which is in question in the trial”: Judgment at [69]. His Honour was in error in so concluding.
It is clear that the purpose of s 78 of the Evidence Act is to permit evidence of an opinion where that evidence is necessary to obtain an adequate account or understanding of the person’s perception of a “matter or event”. As Simpson J put it in Leung, the section assumes that the matter or event is relevant to the proceeding. If the nature or occurrence of the matter or event to which the opinion relates is not a fact in issue in the trial, it is difficult to see why the person’s perception of that event, or any opinion based on the person’s perception of that matter or event, would be relevant and therefore admissible.
This may be illustrated by some examples. If a fact in issue was whether a car was exceeding the speed limit of 60 kilometres per hour immediately before an accident, a witness who saw and heard the car drive by immediately before the accident (a matter or event) would be permitted to express an opinion or impression based on what they saw or heard (for example, “the car was travelling really fast, in my view over 100 kilometres an hour”) if that evidence was necessary to obtain an adequate account or understanding of the witness’ perception of that event. Similarly, if a fact in issue is whether a person was excessively intoxicated when they were driving the car, a person who saw the person immediately before they got into the driver’s seat of the car (a matter or event) would be permitted to express an opinion or impression based on what they saw or perceived about that matter or event (for example, “the person appeared to me to be really intoxicated”) if that opinion was necessary to obtain an adequate account or understanding of the witness’ perception of that matter or event. In each case, the matter or event perceived by the witness is directly relevant to a fact in issue at the trial.
As French CJ, Heydon and Bell JJ put it in Jackson (at [48]):
… The function of the law in relation to that category is to permit reception of an opinion where the primary facts on which it is based are too evanescent to remember or too complicated to be separately narrated. Where the evidence is that a person appeared to be drunk or middle-aged or angry, for example, it is impossible in practice for the observer separately to identify, remember and narrate all the particular indications which led to the conclusion of drunkenness, middle age or anger. For that reason, s 78 permits the conclusion to be stated: without it the evidence does not convey an adequate account or generate an adequate understanding of the witness’s perception of the sobriety, age or emotional state being observed. …
In the present case, the primary judge reasoned (at [70]) that the person’s perception “need not be about a particular event” but may be about a “matter”. Even if that be the case, however, it does not follow that the “matter” as perceived by the witness need not be an issue in, or relevant to, the proceeding.
According to the primary judge, “[i]n the case of recognition evidence, the relevant ‘matter’ must be the mental comparison between the remembered understanding of a person’s appearance and an observation of that person on a subsequent occasion”: Judgment at [73]. That observation led the primary judge to conclude as follows as to the relevant “matter” in this case (at [74]):
In the present case each officer was giving an opinion about the similarity between a remembered impression of the appearance of the appellant and the images taken from the CCTV footage. That was the “matter” about which the opinion was expressed. It was clearly based upon what the officer "saw … or otherwise perceived" about the appearance of the appellant and the person shown in the photograph. Therefore, it was within the scope of s 78 and hence not inadmissible under s 76.
That reasoning is, with respect, erroneous.
If the primary judge meant that the relevant “matter” was the “mental comparison” supposedly engaged in by the constables, that would appear to be not only entirely artificial, but also to conflate the opinion given by each of the constables and the supposed “matter” on which their opinions were supposedly based.
It is, moreover, difficult to accept that a “mental comparison” can be a “matter” for the purposes of s 78 of the Evidence Act. Amongst other things, it is difficult to see how any “mental comparison” made by the constables could be said to have been seen, heard or otherwise perceived by them: s 78(a) of the Evidence Act. It is equally difficult to see how evidence of an opinion based on what the constables saw, heard or perceived about a “mental comparison” supposedly made by them could be said to be necessary to obtain an adequate account or understanding of the constables’ perception of their said “mental understanding”: s 78(b) of the Evidence Act. More fundamentally, if the relevant “matter” was the “mental comparison” supposedly made by the constables, that “matter” was not itself a “matter” which was in question in the appellant’s trial: cf Smith at [60] (Kirby J).
The reasoning is equally erroneous if the primary judge meant that the relevant “matter” was the appearance of the appellant, or the appearance of the person in the photograph, or both. It may perhaps be accepted that the constables saw the appellant or images of the appellant on prior occasions. The constables also saw images of the person captured on the CCTV footage. It is, however, artificial and somewhat circular to say that the appearance of the appellant, or the appearance of the person in the photograph, were “matters” which were relevantly seen or perceived by the constables for the purpose of s 78(a) of the Evidence Act.
It also cannot be accepted that evidence of the opinion of the constables to the effect that the appellant was the person depicted in the CCTV images is “necessary to obtain an adequate account or understanding of the [constables’] perception” of the appearance of the appellant on prior occasions, or the appearance of the person in the CCTV footage: s 78(b) of the Evidence Act. The constables may have been able to give evidence concerning the appellant’s appearance as observed on the prior occasions. The evidence of their opinion, however, was not necessary to obtain an adequate account or understanding of any such evidence given by the constables. Indeed, if anything, the opinions given by the officers was the primary evidence and the prior observations of the appellant were, at best, ancillary to their opinions. That is the opposite of what s 78 permits. Finally, the appearance of the appellant on prior occasions was also not a “matter or event” which was in question in the appellant’s trial.
It is perhaps true that the reasoning of the primary judge is, as his Honour noted (Judgment at [75]), consistent with the decision of the Court of Criminal Appeal of the Supreme Court of New South Wales in Nguyen at [30]-[31] (Smart AJ, Mason P and Adams J agreeing at [2] and [4]). That said, the reasoning concerning s 78 of the Evidence Act (NSW) in that case was very sparse, did not refer to the reasoning of Kirby J in Smith and did not explain at all how the evidence fell within s 78(b) of the Evidence Act (NSW). While it was said that the opinion evidence of each of the officers in question was “based on what he had seen or perceived about, firstly the real life appearance of the particular accused and secondly what is depicted in the recorded footage”, it was not explained how the opinion of each of the officers was necessary to obtain an adequate account or understanding of the person’s perception of the matter or event: Nguyen at [30]. It should also be noted that the evidence in question in Nguyen was also admitted pursuant to s 79 of the Evidence Act (NSW). The reasoning in Nguyen provides little, if any, assistance in resolving the issue in dispute in this matter. Essentially the same can be said in respect of the reasoning of the Victorian Court of Appeal in Kheir at [65]-[69].
The “matter or event” in question in the appellant’s trial was the theft of the backpack from the shopping centre – just as the “matter or event” in question in Smith was the robbery: cf Smith at [60]. The effect of the opinion evidence of the constables concerning that “matter or event” was that the appellant was the person who stole the backpack. The difficulty, however, is that, as was the case in Smith, neither of the constables witnessed that matter or event. The opinion evidence of the constables was not based on what they saw, heard or otherwise perceived about any matter or event that was in issue or otherwise relevant. Nor was the evidence of their opinions necessary to obtain an adequate understanding of their perception of any relevant matter or event.
There is an additional complicating factor in this matter. That is that, if anything, the opinion evidence of Constable Colvin was primarily based on what he was told by Constable Hill about the distinguishing features between the appellant and his brother, in particular the length of their hair. It was only on the basis of that information that Constable Colvin was able to express the view that the person depicted in the CCTV footage was the appellant, his view previously having been that the person was either the appellant or his brother. Thus it would appear that the relevant “matter”, in terms of s 78(a) of the Evidence Act, in the case of Constable Colvin’s opinion evidence, was the information given to him by Constable Hill. It is, however, impossible to accept that evidence of Constable Colvin’s opinion could be said to have been necessary to obtain an adequate account or understanding of his perception of that “matter”. The opinion evidence of Constable Colvin accordingly did not satisfy s 78(b) of the Evidence Act.
As for Constable Hill, his opinion was again largely based on his observations of the appellant and his brother together some nine days after the date of the theft. It was on that occasion that Constable Hill observed the feature or features which distinguished the appellant from his brother. It was only on the basis of his observations on that occasion that Constable Hill was able to exclude the appellant’s brother and say that the person depicted in the CCTV footage was the appellant. Thus it would appear that the relevant “matter or event” in terms of s 78(a) of the Evidence Act, in the case of Constable Hill’s opinion evidence, was the matter or event nine days after the date of the event in question, when Constable Hill saw the appellant and his brother together. Not only was that matter or event not in question in the appellant’s trial, it is impossible to accept that evidence of Constable Hill’s opinion was necessary to obtain an adequate account or understanding of his perception of that matter or event. The opinion evidence of Constable Hill accordingly did not satisfy s 78(b) of the Evidence Act.
While the application of s 78 of the Evidence Act is not entirely straightforward, particularly in the case of recognition or identification evidence of the sort given by the constables in this case, the better view is that the evidence in question was not admissible pursuant to that provision. The primary judge erred in concluding to the contrary.
Given the conclusion that, even if relevant, the disputed evidence of the constables was inadmissible opinion evidence, it is strictly unnecessary to go on to consider whether the evidence should have been excluded pursuant to s 137 of the Evidence Act. It is, however, again of some utility to consider that issue, in the event that a different view is taken in any appeal in respect of the scope and operation of s 78 of the Evidence Act in the case of identification evidence of the sort in issue in this case.
Should the evidence have been excluded pursuant to s 137 of the Evidence Act?
As was noted earlier, the appellant did not contend before the magistrate that the identification or recognition evidence should have been excluded pursuant to s 137 of the Evidence Act on the basis that its probative value was outweighed by the danger of unfair prejudice. The primary judge nevertheless entertained the appellant’s argument, on appeal, that it should have been. The primary judge concluded that the probative value of the evidence was not “inherently low” because of the “recency and circumstances of contact with the appellant and the quality of the CCTV images”: Judgment at [81]. His Honour also found that the risk of unfair prejudice was “low” because the proceedings were not before a jury and “the magistrate was in a position to properly consider the evidence in light of the submissions made”: Judgment at [81].
There are difficulties with this reasoning. When close attention is given to the evidence actually given by the officers, it is difficult to avoid the conclusion that it was tenuous and of low probative value. Moreover, the risk that the evidence might be misused and given excessive weight was high.
The potential difficulties with and dangers of identification or recognition evidence are well-known and do not need to be rehearsed. In this case the evidence was particularly tenuous for a number of reasons. First, the constables appear to have had only fleeting contact with the appellant in the past. Constable Colvin had only seen the appellant about three times in the past and the most recent occasion was some months before the date he first viewed the CCTV footage. Constable Hill had only seen the appellant “in passing” before. Indeed, it would appear that Constable Hill had never personally dealt with the appellant in the past and had only seen images of him. Second, the evidence of both Constable Colvin and Constable Hill did not include any description of the appellant, or identify any distinguishing features of the appellant. Third, the evidence of both constables focussed mainly on their supposedly being able to distinguish the appellant from his brother.
There was also a significant risk that the evidence would be given undue weight or otherwise misused, even though the magistrate, and not a jury, was the tribunal of fact. Indeed, it is open to conclude that the magistrate did relevantly misuse the evidence. In Smith, the majority identified at least one way in which evidence of the sort given by the constables in this case may be misused. Their Honours said (at [11]):
The process of reasoning from one fact (the depiction of a man in the security photographs) taken with another fact (the observed appearance of the accused) to the conclusion (that one is the depiction of the other) is neither assisted, nor hindered, by knowing that some other person has, or has not, arrived at that conclusion. Indeed, if the assessment of probability is affected by that knowledge, it is not by any process of reasoning, but by the decision maker permitting the substitution of the view of another, for the decision-maker’s own conclusion.
(Emphasis added.)
In the present case, it is difficult, if not impossible, to avoid the conclusion that the magistrate permitted the opinions of the constables to be substituted for his own conclusion. There is no indication in the magistrate’s reasons that he concluded, from his own observation of the appellant and his own observation of the CCTV footage, that the person depicted in the CCTV footage was the appellant. He appears to have relied entirely on the views of the constables.
The primary judge erred in concluding, in all the circumstances, that the probative value of the impugned evidence was not outweighed by the danger of unfair prejudice. The probative value of the evidence was at best weak and the danger of unfair prejudice was real and substantial. The evidence ought to have been excluded pursuant to s 137 of the Evidence Act.
Ground 3 – Unsafe and unsatisfactory
It is unnecessary, in the circumstances, to give any detailed consideration to this ground. If, as has been concluded, the impugned opinion evidence of Constable Colvin and Constable Hill was inadmissible, or should have been excluded, there could be little doubt that the conviction was unsafe and unsatisfactory. The prosecutor relied entirely on the opinion evidence of Constable Colvin and Constable Hill to establish that the person depicted in the CCTV footage came from Constable Colvin and Constable Hill.
If, on the other hand, contrary to the conclusions expressed earlier, the evidence of Constable Colvin and Constable Hill was admissible and was not liable to exclusion, the question is somewhat more difficult. For the reasons already given, the recognition or identification evidence of Constable Colvin and Constable Hill was inherently weak. It is nevertheless somewhat difficult to conclude that it was not open to the magistrate to find that the person depicted in the CCTV footage is the appellant. The difficulty in arriving at that conclusion is exacerbated by the fact that the Court must have regard to any advantages that the magistrate may have had in seeing and hearing the witnesses.
The real difficulty in this case is that the appellant appeared in person before the magistrate. The magistrate was accordingly able to closely observe the appellant and himself form a view as to whether he was or was not the person depicted in the CCTV footage. This Court had no opportunity to observe the appellant and obviously cannot therefore engage in such an exercise. As discussed earlier, there is no indication in the magistrate’s reasons that the magistrate himself conducted that exercise, or was able to conclude from his own observations of the appellant and the CCTV footage that the appellant was the person depicted in the footage. Rather, the magistrate appears to have relied entirely on the evidence of the officers and effectively permitted their opinions to be substituted for his own conclusion. On the one hand, that may well indicate that the magistrate was unable to be satisfied beyond reasonable doubt based on his own observations. On the other hand, it may simply indicate that the prosecutor did not submit that the magistrate could or should engage in that comparison exercise, or that the magistrate misunderstood his task.
The appellant frankly conceded in this Court that, while he did not abandon this ground before the primary judge, he did not put the arguments in support of the ground clearly or forcefully. Indeed, the appellant appears to have effectively conceded that, if the evidence of Constable Colvin and Constable Hill was found to have been properly admitted, there was little that could be said in support of the ground beyond the submission that the evidence was weak.
In all the circumstances, if, contrary to the conclusion that has been reached, the evidence of Constable Colvin and Constable Hill was admissible and not liable to exclusion under s 137 of the Evidence Act, it would not have been appropriate to quash the conviction on the basis that it was unsafe and unsatisfactory.
Ground 1 – Failure to conduct a rehearing
It is also unnecessary to address this ground of appeal in the circumstances. There is perhaps some merit in the appellant’s submission that the primary judge did not independently review all of the evidence that was before the magistrate. That, however, appears to have been a product of the way in which the appeal was conducted before his Honour. The focus appears to have been almost entirely on the admissibility of the impugned evidence of Constable Colvin and Constable Hill. As already noted, while the unsafe and unsatisfactory ground may not have been abandoned before the primary judge, it seems not to have been forcefully pressed or supported by any persuasive submissions. It is hardly surprising, in those circumstances, that the primary judge appears not to have reviewed or analysed the evidence in its entirety in any great detail.
Conclusion
The primary judge erred in finding that the impugned evidence of Constable Colvin and Constable Hill, being their evidence that the person depicted in the CCTV footage of the theft was the appellant, was admissible and not liable to exclusion. The evidence was irrelevant, or if it was relevant, it was opinion evidence which did not fall within the exclusion to the opinion rule in s 78 of the Evidence Act. Even if admissible, the evidence ought to have been excluded pursuant to s 137 of the Evidence Act as its probative value was substantially outweighed by the danger of unfair prejudice to the appellant. The primary judge erred in concluding otherwise.
The appeal must accordingly be allowed.
The remaining question is whether appellant’s conviction should be quashed and a new trial ordered, or whether a verdict of not guilty should be entered. The question ultimately hinges on whether the interests of justice require there to be a new trial. The parties gave this issue little, if any, attention in their submissions. In particular, the respondent did not identify any reason why, if the appeal were allowed on the basis that the identification evidence was inadmissible, the interests of justice required or favoured a retrial.
It cannot, in the particular circumstances, be concluded that the interests of justice require that there be a retrial. The respondent’s conduct of the proceeding before the magistrate was in many respects unsatisfactory. The respondent chose to address the critical issue of identification by adducing irrelevant and inadmissible opinion evidence from Constable Colvin and Constable Hill. Having regard to the way the appeal has been conducted, it is not possible for the Court to determine whether the admissible evidence that was adduced at the trial – the CCTV footage and Constable HiIl’s evidence concerning the appearance of the appellant’s brother just over a week after the day the offence was committed – was capable of supporting a conviction. Over two years have passed since the offence was committed. It would not be in the interests of justice for the appellant to face another trial given the effluxion of time and given the unsatisfactory manner in which the prosecution was handled at first instance.
| I certify that the preceding ninety-eight [98] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Wigney. Associate: Date: 3 December 2021 |
ABRAHAM J:
Introduction
100. I have had the advantage of reading the reasons of Wigney J and agree that the appeal should be allowed. I have nothing to add in respect to the grounds alleging an unreasonable verdict and failure to conduct the rehearing, (although the grounds are unnecessary to decide). I also have no further comments to add in respect to the ground relating to s 137 of the Evidence Act 2011 (ACT), except to observe that there is a great degree of artificiality in this argument, raised for the first time before the primary judge. It is based on the premise of the risk of misuse of the evidence, in a context where the evidence has been heard and considered. When such an argument is raised for the first time on appeal, the evidence having already been admitted, the appropriate ground would be that a miscarriage of justice has arisen as a result of the admission of the evidence.
101. In respect to the issue of admissibility of the impugned evidence, although I agree with the conclusion of Wigney J, I prefer to describe my reasoning for doing so. I also differ from Wigney J as to the order which should ensue.
102. In this case identification evidence in the form of police officers identifying the appellant in still photographs from CCTV footage of an event proximate to the offence was led, and admitted over objection. This case illustrates the importance of the prosecution considering the admissibility of the evidence it seeks to rely on to establish its case, before the evidence is adduced.
Consideration
103. There was no issue at trial that the CCTV footage captured the offender leaving the shopping mall with the stolen backpack. Rather, the sole issue was whether it had been established, beyond reasonable doubt, that the appellant was the offender. The only issue in the trial was identity.
104. The evidence before the magistrate included the CCTV footage and two still photographs taken therefrom. In this Court, apart from the appellant’s written submissions that the still photographs depict a relatively unimpeded front on view of the face of the offender, no submission was made directed to the quality of the footage or the still photographs. The prosecution did not take issue with the correctness of that submission. Nor was it advanced by the prosecution that because of the quality of the photograph (or lack thereof) the police officers who gave evidence, who had prior knowledge of the appellant, were in a better position than the Court to assess the identity of the person depicted.
105. It is important to recall that the issue is not whether the person depicted in the CCTV footage was the appellant or his identical twin brother, but rather whether it has been established that it is the appellant depicted in the CCTV footage. Although, in the circumstances of this case, for the appellant to be convicted, the magistrate would need to exclude as a reasonable possibility that the appellant’s brother is the person depicted.
Smith v The Queen
106. Given the context in which the matter arises it is appropriate to consider the decision in Smith v The Queen [2001] HCA 50; 206 CLR 650.
107. The circumstances before the Court in Smith are summarised at [9]:
The only evidence led against the appellant in relation to that disputed fact was the evidence of the two police officers and the evidence that demonstrated that the photographs which were tendered in evidence had been taken by the bank's security cameras during the robbery. Neither police officer suggested that he had any basis for concluding that it is the appellant depicted in the bank photographs other than the knowledge that he had gained of the appellant's physical appearance during those earlier encounters and whatever was revealed to a person who looked at the photographs that were produced in evidence. There was no suggestion that the physical appearance of the appellant had changed materially between the time when the photographs were taken and the time of the trial, or that the police, by reason of their previous observations of the appellant, were at some advantage in recognising the person in the photographs. It was acknowledged by counsel, in the course of argument in this Court, that, by the time the evidence had concluded, the jurors had probably spent more time in the presence of the appellant than had the police witnesses before they gave their evidence. The police witnesses were in no better position to make a comparison between the appellant and the person in the photographs than the jurors or, for that matter, some member of the public who had been sitting in court observing the proceedings. If such a member of the public had been called as a witness, the same question of relevance would have arisen. Thus, not only was the issue that was raised a very narrow issue, the data available to the jury for its resolution was no different in any significant way from the data upon which the police officers based their asserted conclusion. The police officers' conclusions and the jury's conclusion both depended upon combining their observation of the appellant's appearance with their observation of the photographs. (Having regard to the quality of the photographs we saw, it is not clear that the jury could not have compared them with the accused.)
108. The identification evidence from the CCTV photograph, as in this case, was given by police officers. The evidence in Smith was more detailed than in this case, and included one officer who had been involved in arresting the accused on prior occasions, spending two to three hours in the accused’s company on each occasion.
109. The Court, having identified the relevant question that arose at [10], observed at [11]:
Because the witness's assertion of identity was founded on material no different from the material available to the jury from its own observation, the witness's assertion that he recognised the appellant is not evidence that could rationally affect the assessment by the jury of the question we have identified. The fact that someone else has reached a conclusion about the identity of the accused and the person in the picture does not provide any logical basis for affecting the jury's assessment of the probability of the existence of that fact when the conclusion is based only on material that is not different in any substantial way from what is available to the jury. The process of reasoning from one fact (the depiction of a man in the security photographs) taken with another fact (the observed appearance of the accused) to the conclusion (that one is the depiction of the other) is neither assisted, nor hindered, by knowing that some other person has, or has not, arrived at that conclusion. Indeed, if the assessment of probability is affected by that knowledge, it is not by any process of reasoning, but by the decision maker permitting substitution of the view of another, for the decision maker's own conclusion.
110. Significantly, the Court recognised at [12] that its conclusion was not that it will never be relevant for a witness to give evidence that he or she recognises the person depicted in a photograph, and went on to provide a number of possible scenarios. Given the primary judge’s conclusion in this case it is appropriate to refer to [15], where the High Court relevantly observed:
In other cases, the evidence of identification will be relevant because it goes to an issue about the presence or absence of some identifying feature other than one apparent from observing the accused on trial and the photograph which is said to depict the accused. Thus, if it is suggested that the appearance of the accused, at trial, differs in some significant way from the accused's appearance at the time of the offence, evidence from someone who knew how the accused looked at the time of the offence, that the picture depicted the accused as he or she appeared at that time, would not be irrelevant. Or if it is suggested that there is some distinctive feature revealed by the photographs (as, for example, a manner of walking) which would not be apparent to the jury in court, evidence both of that fact and the witness's conclusion of identity would not be irrelevant. Similarly, if, as was the case in R v Tipene, there is an issue whether photographs of different incidents depict the same person, evidence given about the identity of the person depicted may not be irrelevant.
(Footnotes omitted.)
111. The observations of the majority in Smith as to the type of circumstances in which the evidence may be relevant bear a common feature; that the witness would be in a better position than the trier of fact to assess the identity of the person in the photograph. It follows that attention must be directed to that feature, applying the relevant principles to the evidence in the individual case.
Childrens Court proceedings
112. A number of observations can be made about the hearing before the magistrate, noting that the evidence of Constable Colvin was led before the evidence of Constable Hill.
113. The prosecution did not lead any evidence as to the familiarity of Constable Colvin with the appellant. For example, in examination in chief, no evidence was led in relation to the number of occasions Constable Colvin had seen the appellant or his brother, the context in which that occurred (such as the length of time over which the appellant was observed) or any other matter which would provide a basis for Constable Colvin to be in a better position than the trier of fact to identify the appellant from the photograph. Nor, was any evidence led as to any differences between the appellant’s appearance in Court and that at the time of his arrest such as might be said to impact on, or be relevant to, the ability of the trier of fact to identify the person in the photograph. In cross-examination, Constable Colvin estimated that he had seen the appellant at least three times, and that he was referring to a time a few months prior to seeing the photograph. He gave evidence that he guessed he had probably seen the appellant’s twin brother about the same number of times. When asked how long he had been in the company of the appellant and his brother, he said it would not have been more than half an hour. I note that Constable Colvin gave evidence of a conversation he had with Constable Hill about the difference in appearance between the twins that Constable Hill had observed when he saw them together nine days after the offence. It is unclear the basis on which this evidence was admissible. It was for Constable Hill to give evidence of his observations. What is apparent is that Constable Colvin’s evidence as to identity is premised on an acceptance by him of Constable Hill's observations.
114. In chief, Constable Hill was asked about his contact with the appellant and his brother. His evidence was that when he saw the “look out to be kept for” (in an email) he “suspected it to be either [MT] or [the appellant], as they are twins”. He had never dealt with the appellant, but had seen his photographs on the police indices. He had dealt with his brother a “minor number of times”. When asked if it was less than ten times, he agreed. Constable Hill gave evidence of his observations when he saw the two twins together at their home on 5 June 2019, nine days after the offence. At some later time, upon looking at the look out to be kept for again, he was “very satisfied that it was the appellant he had observed earlier due to his slim build and shorter hair compared with what I had seen with [MT] that day of being a solider build and with longer hair”. The appellant has “significantly shorter” hair than his brother (who had almost shoulder length hair at the back of his neck), and was quite slim, with his brother being of “solider build”. Constable Hill arrested the appellant for another offence that day. When asked whether the hair was the same length as in Court, he said it was “significantly shorter” than what it was that day in Court. In cross-examination, when asked if he had seen the brothers together before and he said he had seen fleeting glimpses within the last two or three years.
115. Although the witnesses’ evidence tended to be addressed together during the hearing and in this appeal, there are differences.
116. Constable Colvin’s evidence was dependent on an acceptance of Constable Hill’s evidence as to his observations of the differences between the brothers. All Constable Colvin could give evidence of, from his observations, is that the photograph was of one of the brothers. He could not give evidence of any differences between the brothers as at that time. It is only Constable Hill who could give evidence of any difference.
117. Moreover, on the evidence, the witnesses’ dealings with the appellant and his brother were limited. For example, although it is suggested that Constable Hill’s evidence was that he had dealt with the brother less than ten times, that number was in fact an arbitrary figure presented by the questioner, with his evidence being that it was a “minor number of times”. He had not dealt with the appellant at all prior to the occasion nine days after the offence, and had only seen photographs of him on the police system. Rather, as is apparent from the recitation of his evidence, his conclusion is a process of deduction from having observed the brothers after having viewed the still photograph taken from the CCTV footage. It was only after observing the brothers and reviewing the photographs that the identification occurred.
118. In that context, the submission advanced by the prosecution before the magistrate was not based on an assertion that Constables Colvin and Hill were in a better position than the magistrate, but rather the submission focussed on the distinguishing features between the brothers and that the magistrate could rely on their evidence.
119. The only evidence of a difference in the appellant’s appearance between that in Court and around the time of the event, was that of Constable Hill when asked about any differences in the appellant’s hair length in Court compared with when he observed him nine days after the event. However, it was not submitted that was a basis to admit the identification evidence.
120. I note that, with respect to the magistrate, when addressing the admissibility of the evidence, his Honour addressed the wrong question. He approached the issue of admissibility of the evidence of Constables Colvin and Hill based on the proposition that they were in a better position than he was, and their evidence was likely to be more reliable because his ability to recollect the appellant and his brother from previous appearances by them before him was not as good as their evidence. He concluded that his “exposure to [the] young people is simply not sufficient”. The magistrate’s reasoning was also circular in that he observed that the image in the photograph is different than how the appellant appeared in Court (with no explanation of the basis), and that he would likely not be satisfied of identity and therefore that is the basis on which the evidence should be admitted.
121. I note that the prosecution did not tender any photograph(s) of the appellant (or his brother) taken proximate to the time of the offence. At least a photograph of the appellant would have been expected to be in evidence.
Primary judge’s reasons
122. More importantly, given this is an appeal against the primary judge the relevant conclusion is to be found at [58]-[59]:
[58] In the hearing before the magistrate:
(a) There was direct evidence from Constable Hill that the appellant’s hair was shorter at the time that he observed him on 5 June 2019 than when he appeared in court.
(b) In contrast to Smith v The Queen, there was no photograph of the appellant proximate to the time of the alleged offence.
(c) There was an additional issue because of the existence of an identical twin to the appellant and the potential for that to give rise to a doubt about the identity of the offender. The twin, MT, was not in court. The capacity to exclude beyond a reasonable doubt the possibility that the person in the CCTV was the appellant’s twin could not be done by observing the twin in court.
[59]These three features of the evidence in this case indicate that it is not within the narrow class of case identified in Smith v The Queen, where the evidence is based upon material no different in any substantial way from what is available to the finder of fact. Therefore, the evidence was not inadmissible because of its lack of relevance.
123. The reasoning upon which the primary judge held on appeal, that the evidence is admissible, was not one advanced by the prosecution at first instance as to its admissibility.
124. Pausing there, as noted above, attention must be directed to the evidence, and the relevant question. The first issue is one of relevance. That is, could the evidence of Constables Colvin and Hill (each being considered separately) rationally affect the trier of fact’s assessment of the probability that it is the person standing trial who is depicted in the photograph.
125. It is necessary to consider the three features identified by the primary judge, as it is these which are said to have taken this case outside the reasoning in Smith.
126. The first matter is Constable Hill’s evidence as to the length of the appellant’s hair. No further detail was elicited. There was no evidence or submission before the magistrate as to what difference, if any, that makes to the appellant’s appearance. There is no evidence of there being any other difference in appearance, or that his appearance had changed in any other way. As the majority in Smith postulated at [15], “if it is suggested that the appearance of the accused, at trial, differs in some significant way from the accused’s appearance at the time of the offence, evidence from someone who knew how the accused looked at the time of the offence, that the picture depicted the accused as he or she appeared at that time, would not be irrelevant”. Absent any evidence it is difficult to envisage that simply having shorter hair would significantly change the appellant’s appearance.
127. The second matter is the absence of a photograph of the appellant at the time of his arrest. It may be accepted that in Smith, as is apparent from the decision of the New South Wales Court of Criminal Appeal the subject of the appeal, the prosecution tendered a photograph of the accused at the time of his arrest. No such photograph was tendered in this case. That said, the existence of that photograph in evidence is not referred to by the High Court, and it can therefore be assumed played no part in the reasoning. As the majority observed, the jury had just as good an opportunity to view the accused as the police officer witnesses. Given the evidence of limited observations of the appellant before the hearing, the same could be said in this case.
128. The prosecution could have led evidence of a photograph. Given the nature of the prosecution case which was dependent on establishing the person in the photograph is the appellant, it would be expected that one would be in evidence. In that context, it would be a rather unusual result where the absence of such evidence (without explanation) could lead to the evidence which might otherwise be irrelevant, being relevant. That said, given the limited evidence of any difference in the appellant’s appearance, as described above, it is difficult to see how the absence of a photograph could have had much impact.
129. The final matter is the existence of the appellant’s identical twin. Although that might complicate the ability of the prosecution to establish its case, it is however, not the issue. Whilst the appellant’s brother would need to be excluded, Constable Hill could give evidence of the appellant’s brother’s characteristics which distinguished him from the appellant, observed nine days after the events. Indeed, he gave that description and it was relied on by Constable Colvin to exclude the appellant’s brother. He could also have given evidence of the brother’s hair length and weight in comparison to the person depicted in the photograph.
130. The issue as to admissibility of the impugned evidence is not determined simply on the basis of whether the evidence in this case can be distinguished from that in Smith, but rather, whether the evidence sought to be led is relevant. It is, with respect, an additional question which must be addressed. There may be differences between the evidence in this case and Smith, but that does not necessarily render it relevant; it is the effect of the differences which impacts on the question of relevance. For example, a difference in appearance per se might not be sufficient. Rather, to effect the question of relevance, the difference would need to have the consequence that the witness is in a better position to identify the person in the photograph than the Court, as the trier of fact.
131. I note that the primary judge does not refer to the quality of the photographs from the CCTV, or the CCTV vision in evidence. It is not apparent whether it is such that a person looking at it would, because of its quality, have difficulty in identifying a person in it without prior familiarity with that person. As noted above, apart from a limited and unchallenged submission in this Court by the appellant that the still photographs depict a relatively unimpeded front on view of the face of the offender, no submission was directed to the quality of the footage or the still photographs. As this was not a basis of either the magistrate’s decision, or referred to by the primary judge, it can be assumed that it was not a feature which was relied on by the prosecution.
132. Given there is no issue raised with the quality of the photographs, there was a proper and admissible manner in which evidence could have been adduced as to the difference in appearance of the appellant and his brother. It would then have been for the magistrate to decide whether his Honour was satisfied of the identity of the appellant.
133. Given the evidence (or lack thereof) it has not been established that Constable Hill or Constable Colvin was in any better position than the trier of fact. It has not been established that there is some significant difference in the appellant’s appearance since the date of the offence. On the evidence, it has not been established that the impugned evidence was relevant.
Opinion evidence
134. If the evidence was relevant, the appellant contended that it was inadmissible as opinion evidence relying on s 76 of the Evidence Act, and does not fall within the exception for lay opinion contained in s 78. The respondent contended that the evidence should be characterised as evidence of fact rather than opinion but submitted that, in any event, s 78 was not limited to eyewitness opinions in the way contended for by the appellant.
135. Given my conclusion in respect to relevance it is unnecessary to decide this ground. That said there are a number of observations that can be made. This issue only arises if the evidence is otherwise relevant. Considering this issue in that context gives this argument a significant degree of artificiality, given the paucity of evidence led.
136. The primary judge was of the view that it was not necessary to resolve the issue because if the evidence was evidence of fact then Pt 3.3 of the Evidence Act did not apply. However if the evidence was opinion evidence then the evidence would be admissible pursuant to s 78 as lay opinion evidence, for the reasons that follow. In summary, that conclusion was expressed by the primary judge in [73]-[74] is as follows:
[73]In the case of recognition evidence, the relevant "matter" must be the mental comparison between the remembered understanding of a person’s appearance and an observation of that person on a subsequent occasion. In Smith v The Queen the matter was the mental comparison between the police officer’s remembered understanding of the appearance of the accused and the images from the security camera.
[74]In the present case each officer was giving an opinion about the similarity between a remembered impression of the appearance of the appellant and the images taken from the CCTV footage. That was the “matter” about which the opinion was expressed. It was clearly based upon what the officer "saw … or otherwise perceived" about the appearance of the appellant and the person shown in the photograph. Therefore, it was within the scope of s 78 and hence not inadmissible under s 76.
137. There may be a fine line to be drawn as to whether evidence of this nature is of fact or opinion.
138. As observed in Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352 at [10], the word “opinion” is not defined in the Evidence Act 1995 (NSW), and observed that “[i]t is commonly taken to mean an inference from observed and communicable data” (and the parties in Jackson accepted this definition as sufficient for present purposes).
139. Given its conclusion, the majority in Smith did not address issues of admissibility as it was unnecessary to do so, but recognised that further questions may arise. The majority observed that those would very likely include questions about the application of the opinion rule (s 76) and the questions presented by the general discretion to exclude evidence under s 135, and the direction in s 137 to exclude prejudicial evidence. The majority observed at [16] that the answers to those questions may depend, in part, upon the precise nature and form of the evidence.
140. On the other hand, Kirby J did address such issues. At [52], Kirby J observed that “[f]or the purposes of applying s 76 of the Act, it is clear that the distinction between evidence of a "fact" and of an "opinion" is one of degree rather than of kind. The difficulty of classification arises from the fact that, in one sense, all evidence is of the opinion of the deponent”. As apparent from the passage recited below, Kirby J concluded that the evidence was opinion evidence.
141. In R v Drollett [2005] NSWCCA 356, Simpson J (with whom McClellan CJ at CL and Rothman J agreed) also recognised that there is no fine line, but concluded at [43] that:
There may be many instances where identification from photographs, even if a person is well known to the witness as a spouse, has to be classified as opinion evidence. It cannot always be assumed that the photographic material will clearly depict the person who is its subject. The person may be partly obscured, or may be photographed from an unusual angle concealing facial or other defining features. In such a case, the evidence would properly, in my view, be classified as opinion evidence.
And see R v Leung [1999] NSWCCA 287; 47 NSWLR 405 at [43].
142. In some scenarios it may well be that the evidence would more easily fall into the category of fact as opposed to opinion. For example, depending on the evidence, a person who is well known, such as a parent identifying a child, or a person identifying their sibling, might be fact and not an opinion. Similarly, if the witness was giving evidence of a person’s appearance or a person’s features or traits (for example distinctive gait), including by reference to CCTV, it might be evidence of fact. However, where, as here, the police officers (who on the evidence had rather limited company with the appellant) were looking at photographs after an event and comparing them with impressions gained on other occasions, and then by deduction excluded the appellant’s brother, their evidence would more properly be characterised as an opinion. In particular, Constable Hill’s identification is based on a deduction which was arrived at after seeing the CCTV photographs, and only then having later observed the brothers together, identifying the appellant based on the differences he had observed in appearance (he never having observed the appellant previously). As explained above, Constable Colvin could only give evidence that it was one of the brothers.
Exceptions to the opinion rule
143. The appellant’s submission relies primarily on the observations of Kirby J at [60]. To put those observations in context, I recite also the preceding paragraphs:
[58] Consistent with this trend of authority, it is my view that the evidence of identification (or recognition) of the appellant, offered by the police witnesses, was opinion evidence. Accordingly, by s 76 of the Act, it was not admissible to prove the existence of the fact about the existence of which the opinion was expressed. In these proceedings, the fact to be proved was that the appellant was one of the persons depicted in the security photographs recorded at the time of the robbery and hence a participant in the robbery. Unless the evidence became admissible by virtue of an exception to the opinion rule, reflected in the Act, it should have been excluded.
[59] Two possible bases for exception from the opinion rule were explored in argument. The exception for admitting evidence based on specialised knowledge provided by s 79 of the Act can be disregarded, as no suggestion of such expertise was made in relation to the police officers. Their prior contact with the appellant did not amount to ad hoc expertise based on familiarity, nor did they claim any expertise in, for example, anatomical or photographic comparisons. The exception for lay opinion evidence provided by s 78 of the Act states: "The opinion rule does not apply to evidence of an opinion expressed by a person if:
(a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event, and
(b)evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event."
[60]Neither police officer was present at the "matter or event" in question in the appellant's trial, namely the robbery. Although the security photographs record the robbery taking place, the opinion of the police officers is "based on" the photographs and not, as such, "based on" the robbery itself which they did not see, hear or otherwise perceive. The Australian Law Reform Commission's report makes it clear that this provision of the Act was addressed, essentially, to the opinion of eye witnesses. It exists to allow such witnesses to recount, as closely as possible, "their original perception [so as] to minimise inaccuracy and encourage honesty". It is important to note that the requirements for the applicability of s 78 of the Act are cumulative ("and"). Neither the language of the Act governing the reception of lay opinion evidence, nor the purposes of those provisions as explained by the Commission, justifies treating the opinions expressed by the two police officers as falling within a permissible exception.
(Footnotes omitted.)
144. It was said by the appellant that s 79 had no role to play in this case, and it was not considered by Kirby J in Smith as applicable in that case. Kirby J observed that the police officers’ prior contact with the appellant did not amount to ad hoc expertise based on familiarity, citing in comparison Leung at [37]-[40]. Section 79 did not appear to have been relied on in Smith. The appellant submitted on appeal that the evidence could only be admissible if it meets the requirements in s 79, to which the respondent took issue.
145. There are circumstances where, dependent on the evidence, police officers (and others) have been held to be an ad hoc expert for the purposes of s 79 based on their familiarity with the accused (or a feature thereof, for example, the voice). Such evidence has been held, in some cases to be admissible as relevant to identifying the voice of accused or other persons: for example Leung at [34], Nguyen v The Queen [2007] NSWCCA 363; 180 A Crim R 267. In making that observation I note that in Kheir v The Queen [2014] VSCA 200; 43 VR 308, the Victorian Court of Appeal explained that in Victoria such evidence has been treated as fact and not opinion, and it could be admissible under either s 78 or s 79. In Drollett, Simpson J observed at [63]:
The exception provided by s78 is not applicable as evidence of Mr Stephens’ opinion is not necessary to obtain an adequate account or understanding of his perception of any matter or event. S79 has been interpreted widely enough to include the evidence of “ad hoc experts”: see R v Menzies [1982] 1 NZLR 40; Butera v The Director of Public Prosecutions (Vic) [1987] HCA 58; 164 CLR 180; Eastman v The Queen (1997) 76 FCR 9; R v Cassar; R v Sleiman [1999] NSWSC 436; R v Leung. I would, tentatively, take the view that the concept of “ad hoc expert” is capable of including a person who has particular familiarity with another in such a way as to enable that person to give evidence identifying the other person by reference to photographic or video evidence. However, that is not what Mr Stephens purported to do. His evidence, in my view, did no more than this. He selected a person on the film footage whom he considered to be the appellant; he then followed that person through the film footage in order to isolate him at different points during the course of the incident. There was no evidence that Mr Stephens had any particular expertise in deciphering indistinct, staccato-like, jerky film footage. Nor was there any adequate evidence that he had the advantage of particular familiarity with the appellant, such as to enable his classification as an “ad hoc expert.”
146. There is apparent logic to that conclusion. Although the facts in Drollett were different to this case, there is also a commonality in the conclusion as to the absence of evidence.
147. Section 79 could have no application in this case because of the paucity of evidence of familiarity by the witnesses with the appellant. Indeed, Constable Hill’s evidence, which was critical, is based on deductions from observations he made after seeing the photographs of differences in appearance between the brothers, that occasion being the first time he had dealings with the appellant.
148. Given the evidence, and that s 79 is not relied on by the respondent, it is unnecessary to further consider that provision or the appellant’s submission as to its application. That said, it would appear to be a rather unusual result where the lack of evidence of familiarity by a police officer with the appellant (or particular knowledge of the appellant necessary for the opinion to be formed to identify the appellant) which prevents reliance on s 79 means that a police officer could give evidence in a different capacity, as a lay opinion.
149. As noted above, the primary judge concluded that the evidence was admissible pursuant to s 78. Section 78 permits a lay witness to give evidence of an opinion which is based on what the witness saw, heard or otherwise perceived about a matter or event but only if evidence of the opinion is “necessary” to obtain an adequate account or understanding of the person’s perception of the “matter or event”.
150. It was submitted by the appellant that the approach to s 78(a) of the Evidence Act outlined in [60] has been endorsed in Jackson at [40]-[57], [77], [84]. The appellant submitted:
[56] In particular, the High Court in Lithgow City Council v Jackson endorsed a construction of s 78(a) that excludes police officers giving evidence based on an examination of security photographs, as opposed to eye-witness evidence of the offence, because it is not based on what they ‘saw, heard or otherwise perceived about a matter or event’ [42]. The High Court held that this construction was consistent with:
i.the ordinary meaning of perceive [43];
ii.the requirement of ‘personal knowledge of a fact’ in s 69(5) EA;
iii.the purpose of the provision understood by reference to ALRC Report 26 [43]; and
iv.the ‘broad function’ of the ‘correspondent common law rule’ [44]-[46].
…
[60] With respect, Mossop J’s approach to the interpretation of s 78 cannot be reconciled with Lithgow City Council v Jackson. It was not open to His Honour to prefer an alternative construction.
151. Given the appellant’s submission primarily relies on reasoning in Jackson it is appropriate to put Jackson in context. There the Court considered the admissibility of a note written by an ambulance officer at the scene of the incident which reflected on the cause of an injury suffered. The Court concluded the note was not “a perception” of the “matter or event” within s 78(a). The matter there (identified at [42]) was the respondent’s fall, which the ambulance officers did not personally perceive. It will be recalled that s 78(a) refers to an opinion which is based on what the person saw, heard or otherwise perceived about an event or matter. French CJ, Heydon and Bell JJ discussed this concept, and in doing so considered the common law circumstances in which expert opinion was not required, and gave as examples; age, sobriety, speed, time, distance, weather, handwriting, identity, bodily health and emotional state. In this respect the Court did appear to endorse Kirby J’s comments.
152. Their Honours also observed that, whether or not s 78 is precisely identical with the common law, s 78 permits reception of an opinion where the primary facts on which it is based are too evanescent to remember or too complicated to be separately narrated. At [49] their Honours stated:
…The function of the law in relation to that category is to permit reception of an opinion where the primary facts on which it is based are too evanescent to remember or too complicated to be separately narrated. Where the evidence is that a person appeared to be drunk or middle-aged or angry, for example, it is impossible in practice for the observer separately to identify, remember and narrate all the particular indications which led to the conclusion of drunkenness, middle age or anger. For that reason, s 78 permits the conclusion to be stated: without it the evidence does not convey an adequate account or generate an adequate understanding of the witness's perception of the sobriety, age or emotional state being observed. But in cases of the present type the primary facts are not too evanescent to remember or too complicated to be separately narrated.
153. The evidence of Constables Colvin and Hill is removed in type from the notes written by an ambulance officer in Jackson. At one level, it could be said that they were perceiving something in identifying the appellant (and they were doing it from personal knowledge). However, given the rationale for allowing opinion evidence described in the passage recited above, it is difficult to see how Constables Colvin and Hill’s evidence of examining photographs (that is, after the event depicted had occurred) and making deductions based on later observations of the appellant and his brother falls within that. It cannot be said that the primary facts on which it is based are too evanescent to remember or too complicated to be separately narrated. Moreover, as the Court in Jackson explained the rationale, it is based on a person witnessing the matter or event of which they are giving evidence.
154. Even if the opinions were a perception that, of itself, is insufficient to provide an admissible basis for the evidence pursuant to s 78.
155. The submissions on appeal in reality focused on what was the “matter or event” in question; that is, whether Constables Colvin and Hill’s evidence was based on a perception of a “matter or event”. In applying s 78, it is critical to identify the relevant matter or event which the person is said to have witnessed. The appellant’s submission, although at times contended s 78 was confined to the events the subject of the proceeding (here the offence), became rather fluid during his oral submission.
156. The phrase, “a matter or event” refers to two concepts, which on its face are different. When construing a statute generally all words must be given meaning and effect: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [71]. It may be accepted that they have different meanings in the context of this provision. Nothing in Jackson or the text of s 78 suggest otherwise. It may also be accepted that the matter or event is not confined to the offence (or the incident the subject of a claim) as originally contended for by the appellant, and that a matter can be different from the event. It can be readily understood that an event would also be a matter, but a matter is not necessarily an event. At the very least the matter or event must be relevant to the facts in issue. The matter or event must be identifiable to enable the admissibility of the evidence to be adjudged.
157. As noted above, the primary judge concluded at [73] that the relevant "matter" must be the mental comparison between the remembered understanding of a person’s appearance and an observation of that person on a subsequent occasion. With respect to the primary judge, I cannot agree. That description identifies a mental process; a process of deduction or reasoning. In my view that could not be a matter about which the witness “saw, heard or otherwise perceived”. It is also unclear, if that is the matter, how s 78(b) would be satisfied, that is, that the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event.
158. I might add that even though this Court was given more assistance than the primary judge, the parties’ arguments were nonetheless fluid at times. The respondent who was defending the admission of this evidence, and who relied on the reasoning of the primary judge, accepted that the description of “matter” by the primary judge in [73] was expressed in a way that “appears a bit clunky”. However, during the hearing the respondent described the “matter” as the CCTV footage. The respondent also described the matter as the appellant in the CCTV footage. When it was pointed out that the description was the opinion, the respondent contended it was both the matter or event and the opinion. An opinion cannot be the matter or event of which a person witnessed or perceived.
159. I note that the primary judge observed that his Honour’s approach was consistent with that in Nguyen at [30]-[31], and Kheir at [65]-[66].
160. In Nguyen, Smart AJ stated:
[30]The judge held that the evidence of the police officers to the effect that the persons depicted on the CCTV footage and the still photographs taken from that footage are the accused was opinion evidence. He also held that the evidence of each of the officers was based on what he had seen or perceived about, firstly the real life appearance of the particular accused and secondly what is depicted in the recorded footage. Section 78 of the Evidence Act provides:
"the opinion rule does not apply to evidence of an opinion expressed by a person if:
(a)the opinion is based on what the person saw, heard or otherwise perceived about a matter or event, and
(b)evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event."
[31]It was open to the judge to hold that both of these requirements were met. It would have been surprising if he had held otherwise.
161. That is the extent of the discussion on those topics and the reasoning in relation to s 78 which does not address the issue as to matter or event. I note that this decision was before the High Court decision of Jackson. I note also that Smart AJ concluded at [33]-[34] that the evidence was also admissible under s 79. There Smart AJ concluded:
[33] It was part of the duties of each officer to make himself familiar with those who were in the streets of Cabramatta CBD from time to time as he patrolled those streets and establish contact with them. As a result of many years of discharging police duties, much of it on the front line, both officers did so. Each acquired specialised knowledge based on his experience.
[34]The judge was entitled to hold that each officer had specialized knowledge concerning the appearance or identity of all four appellants. Again, it would have been surprising if he had not done so.
162. In Kheir, the Court concluded that the evidence was admissible under s 78 or s 79. As noted above, in contrast to New South Wales, the Victorian courts approach the issue more as pertaining to s 78, rather than s 79. That was a case of voice recognition, and the matter identified by the Court at [65] was the audio recordings of the telephone intercepts, the recordings of the applicant’s record of interview and a comparison between the two. It is difficult to see how a comparison between two matters could be a matter or event that is being witnessed. In any event, the evidence was said to be admissible under s 78.
163. If, contrary to my view that the evidence was relevant, on the state of the evidence before the magistrate, it was inadmissible as it was opinion evidence excluded by s 76. The respondent did not establish that it fell within any exception, the only exception relied on being lay opinion pursuant to s 78.
Conclusion
164. The consequence of the conclusion that the impugned evidence ought not be admitted was not addressed by the respondent. Neither party addressed this eventuality.
165. The power to grant a new trial is a discretionary one and in deciding whether to exercise it the court which has quashed the conviction must decide whether the interests of justice require a new trial to be had. In that regard it is necessary to consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, and if so, whether it is in the interests of justice to do so: Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; 154 CLR 627.
166. The first aspect of that test is satisfied. The evidence of the photographs and CCTV were properly admissible, and as previously explained, Constable Hill could give evidence as to the difference in appearances of brothers nine days after the offence. The real issue is the interests of justice. Upon a conviction having been overturned, it would ordinarily follow that a retrial be ordered, leaving it to the prosecuting authorities to decide whether to proceed with a new trial: Dyers v The Queen [2002] HCA 45; 210 CLR 285 at [23]. There may be good reason for this matter not to be retried. However, the failure to order a retrial results in an acquittal, in a context where the evidence is sufficient to justify a conviction. There is a qualitative difference between that outcome and the prosecution choosing not to proceed with a matter if a retrial is ordered: Mokbel v Director of Public Prosecutions(Cth) [2021] VSCA 94 at [67].
167. The appropriate order in this case is that the appeal is allowed, the conviction is quashed and a retrial is ordered.
| I certify that the preceding sixty-seven [67] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Abraham. Associate: Date: 3 December 2021 |
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