SBT v Colvin
[2020] ACTSC 216
•7 August 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | SBT v Colvin |
Citation: | [2020] ACTSC 216 |
Hearing Date: | 13 May 2020 |
DecisionDate: | 7 August 2020 |
Before: | Mossop J |
Decision: | The appeal is dismissed. |
Catchwords: | APPEAL – APPEAL FROM MAGISTRATES COURT – Appellant convicted of theft – appellant is a young person – Crown concession that magistrate erred in admitting evidence of admissions – conviction not dependent upon such evidence – whether magistrate erred in admitting recognition evidence by police officers – whether finding of guilty is unsafe and unsatisfactory EVIDENCE – IDENTIFICATION EVIDENCE – whether recognition evidence of police officers relevant in accordance with Smith v The Queen [2001] HCA 50; 206 CLR 650 – whether opinion evidence of recognition admissible as law opinion under Evidence Act 2011 (ACT) s 78 – evidence admitted |
Legislation Cited: | Court Procedures Rules 2006 (ACT), r 5531 Criminal Code 2002 (ACT), s 308 Evidence Act 2011 (ACT), pt 3.3, ss 76, 78, 116, 137, 165 |
Cases Cited: | Alexander v The Queen (1981) 145 CLR 395 Bullman v Debnam [2010] ACTSC 97 Munro v The Queen [2014] ACTCA 11 Nguyen v The Queen [2007] NSWCCA 363; 180 A Crim R 267 R v Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56 R v Goodall [1982] VR 33 Smith v The Queen [2001] HCA 50; 206 CLR 650 |
Texts Cited: | Australian Law Reform Commission, Evidence (Interim), Report No 26 (1985) Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 15th ed, 2020) |
Parties: | SBT (Appellant) David Colvin (Respondent) |
Representation: | Counsel J Cooper (Appellant) M Howe (Respondent) |
| Solicitors Aboriginal Legal Service (NSW/ACT) (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 11 of 2020 |
Decision under appeal: | Court/Tribunal: Childrens Court of the ACT Before: Magistrate Cook Date of Decision: 4 February 2020 Case Title: Colvin v SBT Court File Number: CH585 of 2019 |
MOSSOP J:
Introduction
The appellant, a young person, was charged with theft contrary to s 308 of the Criminal Code2002 (ACT). It was alleged that on 26 May 2019 he stole a black backpack from premises within the Westfield Belconnen shopping centre which contained a number of valuable items. He pleaded not guilty. He was convicted by a magistrate. He has appealed against that conviction.
The grounds of appeal are:
(a)the finding of guilty is unsafe and unsatisfactory;
(b)the magistrate erred in admitting the recognition evidence; and
(c)the magistrate erred in admitting the evidence of admissions.
The third of these grounds was conceded by the Crown. However, the reasons of the magistrate were not dependent upon the evidence of the admissions. It is therefore necessary to address the balance of the appeal.
Overview of the prosecution case
It was uncontroversial that on 26 May 2019 a backpack containing valuable items had been stolen from premises within the shopping centre. The respondent relied upon CCTV footage showing a person who the respondent asserted was the appellant. The person on the CCTV footage is not shown actually stealing the backpack. The person is shown shortly after the theft, putting on the backpack and walking towards the exit of the shopping centre. However, the case was conducted upon the basis that the only issue was whether the person in the CCTV footage was the appellant. If that was established, then it was accepted that he was the thief.
The Crown case had two components to it. First, evidence from two police officers that they recognised the appellant as the person in the CCTV footage. Second, admissions made by the appellant that he was the one who had stolen the backpack. Ultimately, the magistrate based his decision upon the recognition evidence of the police officers. He went on to say that he would have admitted the evidence of admissions but did not base his finding of guilt on that evidence.
The concession by the Crown that the admissions should not have been admitted into evidence means that the Crown case could only be supported by the CCTV footage and the recognition evidence given by the police officers.
There were three aspects to the recognition evidence:
(a) First, there was evidence from First Constable Colvin that he recognised the person shown in the CCTV footage as the appellant or his twin brother, MT.
(b) Second, there was evidence from Constable Hill that he had seen the appellant and his twin brother together a few days after the CCTV footage was captured and distinguished the two of them. His evidence was that the appellant was thinner and had shorter hair than his twin brother.
(c) Third, following this, there was evidence that Constable Hill recognised the appellant as being the person shown in the CCTV footage.
The course of the proceedings below
Opening and issues
The hearing took place on 4 February 2020.
Counsel for the respondent gave an opening in which he indicated his understanding was that the only issue was the identity of the person who actually stole the items. He identified that the appellant had a brother and that “there might be some issues in relation to whether [the CCTV footage is] depicting [MT] or the young person”. He identified that some admissions were made and that there would be an issue in relation to those admissions. He identified that Constable Hill had made observations of the twins on 5 June 2019 and there were differences in appearance between the two of them, the appellant having short hair and being of slim build whereas his twin brother had shoulder length hair and was of a chubby build.
The magistrate identified that he had seen both the appellant and his brother before and had made observations of their physical characteristics in order to tell them apart. Counsel for the appellant said he had no difficulties with his Honour hearing the matter.
His Honour confirmed that the position of the parties was that if the identity was established, then all the other grounds were conceded.
Counsel for the appellant indicated that because of the objections to the admissibility of the admissions, that issue should be dealt with on a voir dire. He also indicated that he would object to the police recognition evidence when a relevant question was asked. His Honour indicated that depending on his ruling, the evidence of the voir dire would then become evidence in the trial.
Counsel for the appellant made no statement that limited the issues in the case to whether or not there was a doubt as to whether or not the person in the CCTV footage was the appellant or his twin brother. In other words, there was no formal or informal concession that the person depicted in the CCTV footage was either the appellant or his twin brother. That left it for the prosecution to establish the identity of the person in the CCTV footage beyond reasonable doubt.
The balance of the hearing progressed by the Crown calling First Constable David Colvin and then Constable Simon Hill. Early on in First Constable Colvin’s evidence an objection was taken to him giving recognition evidence, based upon Smith v The Queen [2001] HCA 50; 206 CLR 650 (Smith v The Queen). His Honour confirmed that he was taking the evidence on a voir dire and would make a ruling on it so that “whatever comes out of the voir dire is evidence … for all purposes”.
Evidence of First Constable Colvin
First Constable Colvin said that when he saw the CCTV footage on 27 May 2019 “I formed the conclusion that it was either [the appellant] or [MT].” He took some stills of the footage and prepared a “lookout to be kept for” document which was circulated to other police.
On 5 June 2019 he became aware that the appellant was at the ACT Watchhouse for an unrelated matter. He had a conversation with him. He looked at him and formed the belief that the young person “was the same person that was in the CCTV footage”. He did so after being informed by Constable Hill that MT, the appellant’s twin brother, had longer, shoulder length hair and was heavyset. He said of his observations of the appellant on that day:
I observed [the appellant]; 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.
The images taken from the CCTV footage which were used for the purposes of the “lookout to be kept for” became Exhibit 1.
It is unnecessary to recite the evidence of admissions as the respondent on this appeal concedes that the material should not have been admitted into evidence.
The CCTV footage was tendered. The statement of the victim of the theft was tendered along with three photographs relevant to the nature of the items stolen.
First Constable Colvin was cross-examined about matters going to the admissions which are not necessary to recount.
He agreed that at the time that he watched the CCTV footage, he could not tell whether the person shown was the appellant or his brother.
He said he had seen MT three times previously. In relation to the appellant, he said “I would have to guess probably about the same.” He said that he had seen the brothers side-by-side once, a few months prior to the events in question. As to how long he had observed them he said: “It wouldn’t have been more than half an hour”. He agreed with the proposition that in the period since that observation their appearances could have changed.
Evidence of Constable Hill
Constable Hill then gave evidence. He said that on 28 May 2019 he had seen the “lookout to be kept for” in an email which contained the images in Exhibit 1, although they were “much clearer on a computer screen”. Constable Hill was asked whether he formed a view as to who those images depicted. Counsel for the appellant repeated his earlier objection in relation to the relevance of such evidence.
The officer said that having seen the images “I suspected it to be either [MT] or [the appellant], as they are twins”. He said that he had dealings with MT in the past and had viewed images of the appellant on police indices in relation to other incidents.
He had dealt with MT in the past on less than 10 occasions. He had never seen the appellant in person but had seen images of him.
On 5 June 2019 he attended an address in Ngunnawal where both the appellant and his brother were present. He observed MT lying on the couch and the appellant standing in the kitchen. The appellant had significantly shorter hair than MT. MT’s hair was almost shoulder length. MT was of a more solid build than the appellant, who was quite slim at the time. He could not recall noticing facial hair on either of them. He said that the appellant’s hair was “Significantly shorter than what it is today”.
He reached no conclusion as to whether the appellant was the person who he had seen in the images. He arrested him for another offence and that was what was on his mind at the time. Later that day, after looking at the images again he was “very satisfied that it was [the appellant] in the look out to be kept for that I had observed earlier due to the slim build and shorter hair compared to what I had seen with [MT] that day of being a solider build and with longer hair”. He was asked how confident he was that the person in the CCTV footage was the young person in court, rather than his brother, MT. He said “Completely satisfied. I would not have written an identification statement if I wasn’t satisfied”.
In cross-examination he said that prior to arresting the appellant he had seen him before in passing, but not in relation to any matters that he was investigating. He had seen the appellant and his brother together while he was patrolling the Gungahlin area but those were “just fleeting glimpses” sometime within the last two or three years.
He said that when he attended the Ngunnawal residence on 5 June 2019 MT was initially under a blanket but was talking to the police officers. The appellant was in the kitchen. He said his focus was towards the appellant. After the appellant had been arrested, MT was up and talking to him. The two brothers were only side-by-side for a brief matter of seconds when the appellant was being escorted out of the house.
When he was at the house, the bag snatching incident was not in his mind. It was only after he looked at the still shots again after he returned to Gungahlin Police Station that he was able to form a view about who was depicted in them.
In answer to a question by the magistrate about what observation he made when seeing the images in the “daily briefing bulletin”, he said that he suspected that the person shown was MT or the appellant “due to previous dealings with [MT] and also images I had seen of [the appellant] on police indices”.
Initial submissions
Counsel for the appellant then made the submission that the police recognition evidence “falls squarely on Smith v The Queen”. He submitted that, consistently with Smith v The Queen, the police were in no better a position than the magistrate as they had limited and brief encounters with the brothers. He then made submissions in relation to the admissibility of the admissions, which are not necessary to set out.
Counsel for the respondent then made submissions about the admissions. In relation to the recognition evidence, his submissions were largely confined to the capacity of Constable Hill to distinguish between the twin brothers. No specific reference was made to the decision in Smith v The Queen.
In reply, counsel for the appellant submitted that the recognition evidence of Constable Hill was based upon a single encounter at the house and that the magistrate would need to have regard to “the warnings that fall in Alexander v The Queen [(1981) 145 CLR 395] about how a family member or friend can even be mistaken as to identity”. In answer to a question from his Honour, counsel submitted that the identification by Constable Hill after having arrested the appellant 5 June 2019 involved “a significant suggestibility”.
There was then a discussion of the evidence about what was observed on 5 June 2019. There was then the following exchange between counsel for the appellant and the magistrate:
Mr Turner: … With respect to Smith v R, the authorities were clear that the objection is raised on relevance at the question being put to the police witness. Your Honour would not hear the description evidence of [MT] on the couch with distinct features if my objection was raised yesterday.
His Honour: Yes, if your objection is maintained.
Mr Turner: Yes, and so ---
His Honour: But that’s my difficulty, you see, is I hear what you say but I should not allow that evidence in and I should uphold your objection ---
Mr Turner: Yes.
His Honour: --- because the officer is in no better position than me, having seen both the brothers together in court at various times throughout the year.
Mr Turner: Yes.
His Honour: The difficulty about that of course is that the recollection while I see the brothers at different times of the year and with different physical characteristics is my ability to recall which one I was referring to at the relevant time.
Mr Turner: Yes. Well, I have the same problem in the cells so ---
His Honour: No, no, but I’m just saying, and that’s the reason why I raise it; to be fair is that the officers’ evidence is more reliable than mine in that regard, because my ability to recollect is not as good as that evidence.
Mr Turner: Yes. Well, we then go to your Honour being the fact-finder today [and] having the benefit of seeing the young person for this duration. In my respectful submission, your Honour would still, under Smith v R, uphold my objection on the basis that the fleeting, small, minor number of interactions between [MT] and [the appellant] are such that even here today, your Honour is in a better position than police officers are.
His Honour: But my difficulty about that is that today, I don’t think I am, because the image taken back in June is different to the presentation of the young person today.
Mr Turner: If your Honour accepts the description evidence, yes.
His Honour: Indeed, but that’s the reason why I’m being fair is that I’m likely to do that and that’s why I’m giving you the chance to fully ventilate it, because as a practical matter for the court, I’m not likely not to because I doubt - I’m not able to be satisfied, notwithstanding - and based on the propositions advanced in Smith v R is the very reason why, it seems to me that I should accept it.
Counsel then suggested that maybe it would be useful to view the CCTV footage for the purposes of the Smith v The Queen determination, in order to see the quality of the footage and the comparison that his Honour was invited to make.
The various portions of CCTV footage were then played. The proceedings were then adjourned until later that day.
When the matter resumed, his Honour indicated that he would incorporate his findings on admissibility into his reasons because his conclusion would flow from the admissibility questions. He then invited submissions.
Further submissions
Counsel for the appellant then addressed his Honour. He said that the evidence of Constable Hill was insufficient, being a fleeting observation of the two brothers when the officer’s attention was elsewhere. Counsel indicated that he had made the objection about the relevance of the police officer’s evidence. His Honour referred to what he had said previously that “I was likely to find that it was relevant”. Counsel submitted that the hair of the brothers might have changed in the nine day period between the date of the offence and the observations. He accepted that the position was more difficult in relation to the build of either of the twins. Counsel asked the magistrate “to apply the relevant 116, 165, warnings in the Evidence Act and the special need for caution that’s observed in Alexander v The Queen in relation to the dangers of ID evidence”. He referred to Constable Hill’s evidence that he had only met the appellant on the day of his arrest, having previously seen him only on police indices. Counsel conceded that Constable Hill was confident in his ability to distinguish the brothers, but submitted that he could have been mistaken. He made some additional submissions about the admissions.
Counsel for the respondent dealt first with admissions. He said that if the admissions were not allowed in, then he would point to the evidence of Constable Hill in relation to what was observed nine days after the incident. Counsel said that there was a very clear distinction observed by Constable Hill between the two brothers.
His Honour then said:
What I think - and if I say this, correct me, [counsel for the appellant], you can tell me if I’m saying it wrong - is that the defence’s proposition is this, is that I can’t be satisfied beyond a reasonable doubt as to which one it is, and that the gravamen and, not that it is in fact [MT].
Counsel for the respondent then made some additional submissions about the admissions and the CCTV evidence.
Magistrate’s reasons
Immediately following the conclusion of the submissions, his Honour gave his reasons for decision.
In addition to referring to some general matters relevant to a criminal charge and to the terms of the charge against the appellant, he indicated that he had given himself a warning under s 116 of the Evidence Act 2011 (ACT) when dealing with the photographic evidence. He identified that the only issue was whether the identity of the offender could be established. His Honour then said:
You have what might be best described as an identical twin brother, [MT]. Both brothers have been before the court and I various times - in 2019 and before me at various times in the same year. There is no doubt you are both difficult to tell apart. I have a recollection that [MT] was at one stage in the course of the previous year had longer hair and a heavier build to that of your brother - to that of you, his brother, who was significantly slimmer, had shorter hair, and the makings of a thin moustache.
During 2019 – when, during 2019, however, I’m unable to recall. I declared that to both the parties to ensure there were no difficulties with my having met both brothers on previous occasions in proceedings that were often times before the court and no objections were taken with me moving forward. I further explained in the course of the hearing and in the course of submissions about the - one of the objections, which we’ll talk about the relevance of the evidence of Constable Hill as to the identification that he gave in his evidence has for who was [the appellant] and who was [MT] on 5 June which - following his arrival at the family home in Ngunnawal.
He then referred to the evidence of First Constable Colvin relevant to the admissions.
His Honour indicated that, having regard to the short period of time between 26 May and 5 June, it would not have been possible, having regard to the physical characteristics of the appellant described by Constable Hill, for the appellant to have been confused with his brother.
His Honour said:
I’m satisfied as a consequence of the strength of the recognition by Constable Hill and – sorry, by Constable Hill and the CCTV footage provided to me with the still images provided which I marked as Exhibit 1 and Exhibit 2, and having regard to those other concessions as to the other elements of the offence, that it is [the appellant] who enters Westfield Belconnen on 26 May at 3.28 pm. I’m equally satisfied that it was [the appellant] who engaged in the theft, contrary to section 308 as set out in charge 585.
He indicated that, having regard to that conclusion, he did not need to go on to consider the objection to the admissions, but nevertheless did so. It is not necessary to describe his Honour’s reasons in relation to the admissions.
Smith v The Queen
Smith v The Queen involved recognition evidence given by police officers who had viewed photographs taken from CCTV images of a bank robbery. The High Court unanimously found that the evidence was inadmissible. The majority judgment included 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.
It is notable that the decision was made in a factual context where not only was there “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”: Smith v The Queen at [9] but also where, in addition to the photographs taken by the bank’s security camera, there was a photograph of the appellant at the time of his arrest which was less than a month after the alleged offence and more than a year prior to the trial: R v Smith [1999] NSWCCA 317; 47 NSWLR 419 (R v Smith) at [1], [5], [6].
The judgment recognised that there may be circumstances in which such evidence is relevant. Those circumstances included:
(a)Cases where the identity of the person shown in the photograph is proved in some other way: Alexander v The Queen (1981) 145 CLR 395.
(b)Where the facts in issue extend beyond the narrow question of whether the accused is the person depicted in the photograph such as R v Goodall [1982] VR 33, where the type of jacket worn by the offender in security photographs of a robbery was sought to be linked to the accused.
(c)Where the evidence goes to the presence or absence of some identifying feature that would not be apparent from observing the accused on trial and the photograph which is said to depict the accused.
Of this third category, three examples were given at [15]:
(a)First, “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 look at the time of the offence, that the picture depicted the accused as he or she appeared at that time, would not be irrelevant”.
(b)Second “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”.
(c)Third, where “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”.
The majority then recognised that if the evidence was relevant then it is likely that there would be questions about the application of the opinion rule in s 76 and the operation of ss 135 and 137 of the Evidence Act 1995 (NSW).
The acknowledgement in Smith v The Queen that, in circumstances where the appearance of the accused at trial differs in some significant way from the appearance of the accused at the time of the offence, the recognition evidence of an accused’s earlier appearance will be relevant, is entirely consistent with the judgment’s statement of principle. Evidence will be admissible if it is founded on material that is different to that available to the jury from its own observation. In such circumstances, reliance upon such evidence will not involve the decision‑maker substituting the view of another for the decision-maker’s own conclusion. It will therefore be relevant because it would not simply involve the substitution by the decision‑maker of the view of another for the decision-maker’s own conclusion.
Decision in relation to Smith v The Queen
The reasons given by the magistrate were less than ideal, in that the question of the admissibility of the evidence was not discreetly addressed and the basis for distinguishing the decision in Smithv The Queen was not clearly articulated. However, the appellant’s grounds of appeal did not include any ground asserting failure to give adequate reasons. In those circumstances, the question then is whether the appellant has established that the magistrate erred in admitting the identification evidence because, based on the decision in Smith v The Queen, it was irrelevant.
The portion from the transcript set out at [35] above indicates that the magistrate had seen both the appellant and his brother on a number of occasions and with “different physical characteristics”. However, he could not recall which one he was referring to at the relevant time.
His Honour subsequently referred to the difference in appearance between the appellant in court and the image taken in June 2019. (The CCTV footage was actually from 26 May 2019, but nothing turns on that). On appeal, counsel for the appellant rightly pointed out that such a comparison would be incorrect because it would assume that the appellant was the offender shown in the photograph. I agree that such a comparison would not be a proper basis upon which to put the case into one of the exceptions recognised in the decision in Smith v The Queen. However, when the passage is read as a whole it will be observed that counsel for the appellant below pointed out that any comparison of the image taken and the presentation of the appellant in court would be on the basis of his Honour accepting the officers’ description evidence. His Honour then agreed. Therefore, the chain of reasoning does not appear to be an impermissible one which assumes that the appellant was the offender. Rather, his Honour appears to be reasoning that the officers who gave evidence on the voir dire said that the appellant was the person shown in the photograph, the person shown in the photograph was different in appearance to the person who was in court and therefore that difference in appearance between the contemporaneous observations of the police and the appellant in court was sufficient to take the case into one of the exceptions acknowledged in Smith v The Queen.
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.
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.
Matters not raised below
Two additional arguments were put on appeal that were not raised in the hearing before the magistrate. Each is said to require the exclusion of the recognition evidence. They are the operation of the opinion rule in s 76 of the Evidence Act and the application of s 137 of that Act.
In appeals from the Supreme Court to the Court of Appeal, rule 5531 of the Court Procedures Rules 2006 (ACT) restricts an appellant’s capacity to raise matters on appeal where no objection was taken at trial. There is no equivalent to r 5531 that applies in relation to appeals from the Magistrates Court to the Supreme Court. However, the same policy considerations are applicable. It is highly undesirable that parties raise for the first time on appeal matters not raised before the magistrate hearing the case. To 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 hearing the matter, saving for appeal available arguments to be raised in the event of a conviction. That is a course which is very clearly contrary to the proper administration of criminal justice in the Territory. It is 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.
Opinion evidence
The appellant submitted that the evidence given by the police officers was opinion evidence that was inadmissible under s 76 of the Evidence Act and not within the exception for lay opinion in s 78 of that Act. 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.
The starting point for Pt 3.3 of the Evidence Act is that stated in s 76, namely, that evidence of an opinion is not admissible to prove the existence of a fact. Whether or not Pt 3.3 of the Evidence Act applies depends upon whether the recognition evidence is characterised as evidence of fact or evidence of opinion. As has been pointed out in R v Leung [1999] NSWCCA 287; 47 NSWLR 405 at [43] and R v Smith at [16]-[24], the line between opinion evidence and evidence of fact is not always clearly defined (see generally Australian Law Reform Commission (ALRC), Evidence (Interim), Report 26 (ALRC Report 26) at [738]). So far as recognition evidence is concerned, the example given in each of these cases is that of evidence of a man identifying his wife of 30 years. While that may be treated as evidence of fact other, less firmly based, evidence, such as the identification of a suspect in a police lineup, may be perceived as opinion evidence. Counsel for the respondent submitted that the evidence should be characterised as evidence of fact and that the case was similar to Bullman v Debnam [2010] ACTSC 97, where Penfold J treated the identification of a person in a photograph as the same person who the police officer had observed committing an offence as evidence of fact rather than evidence of opinion: see [18]-[20].
In my view it is not necessary to finally resolve this question. If the evidence was evidence of fact then Pt 3.3 of the Act did not apply. If the evidence was evidence of opinion then, for the reasons which follow, the evidence would be admissible pursuant to s 78 as lay opinion evidence.
Section 78 provides:
78Exception – lay opinions
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 ALRC noted that prior to the Evidence Act there were "an apparently anomalous miscellany of “exceptions"" which permitted the admission of such opinion: ALRC Report 26 at [739]. In its report the Commission said:
739. Exception – Lay Opinion Evidence ... The main factors that these share are that they can be said to be shorthand expressions of fact based on the witness’ perceptions and that it has been seen by the courts as convenient to allow the expression of opinion in their case rather than to insist upon a lengthy, and possibly not particularly helpful, recitation of facts.
(Footnotes omitted)
The Commission explained its proposal as follows:
739 … Thus, it is proposed to admit lay opinion testimony where it is based upon the personal perception of the witness and it is necessary to obtain an adequate account of his perceptions.
740. The proposal, therefore, revives the original rationale based on the distinction between opinion based on the witness’ perception and mere uninformed speculation.
(Footnotes omitted)
In Smithv The Queen, it was only Kirby J who discussed the operation of s 78. His Honour said (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"). 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)
This explanation of the operation of s 78 reads into it a qualification that the "matter or event" be a matter which is in question in the trial. In the circumstances of Smith v Queen, Kirby J considered that to be the robbery itself. In my view, this involves an unwarranted qualification upon the terms of the section.
The requirement of s 78(a) is that the opinion be “based on what the person saw, heard or otherwise perceived about a matter or event”. The reference to a “matter” in addition to an “event” makes it clear that the perception need not be about a particular event. It may simply be about a matter. Nothing in the words of the paragraph require that the matter or event be a fact in issue. The requirement for relevance is achieved by s 55, not by any qualification upon the type of this "matter or event" upon which s 78 may operate. The operation of these words is best understood by reference to the underlying purpose of the admissions of lay opinion.
As set out above, the ALRC referred to the convenience of allowing the expression of opinion in certain cases rather than insisting upon lengthy and possibly not particularly helpful recitation of facts. In Lithgow Council v Jackson [2011] HCA 36; 244 CLR 352 French CJ, Heydon and Bell JJ explained why the common law permitted the reception of non-expert opinion:
45. Function of the common law rule. The common law permitted the reception of non‑expert opinion evidence where it was very difficult for witnesses to convey what they had perceived about an event or condition without using rolled-up summaries of lay opinion – impressions or inferences – either in lieu of or in addition to whatever evidence of specific matters of primary fact they could give about that event or condition. The usual examples are age, sobriety, speed, time, distance, weather, handwriting, identity, bodily health and emotional state, but a thorough search would uncover very many more. The problems which arise in examples falling into this category would have been reduced, though not completely solved, if, at the time of the observation, the observer had foreseen that one day he or she would be questioned by a police detective or a barrister, for then the observer might have made some conscious contemporaneous attempt to sort out the primacy facts so as to facilitate their future recollection and expression. But in many cases, to endeavour to describe the primary facts underlying the inference may be ineffective or misleading without stating the inference. The reason why it is very difficult for the observer is that it is almost impossible to separate the inferences from the primary facts on which they are based, and often very difficult to identify and recollect the primary facts themselves.
…
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.
(Footnotes omitted)
If evidence of lay opinion was not admitted, then the evidentiary position would be unworkable. In a case involving recognition of one person by a witness, the witness would be obliged to describe the features that they observed which led to the recognition – the shape of the face, the length of the hair, the shape of the nose, the features of the eyes, the features of the mouth, the relationship between the eyes, nose and mouth, a description of skin and flesh of the face, a description of the ears, a description of the neck etc. This is obviously an impossible task and would lead to evidence which was completely unusable in relation to the issue in question. It does not accord with the manner in which humans recognise other humans. The alternative is to permit lay opinion subject to the condition in is 78(a), namely, that the opinion be based upon what the person "saw, heard or otherwise perceived" about the matter.
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 Smithv 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.
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.
This conclusion is consistent with the decision of the New South Wales Court of Criminal Appeal in Nguyen v The Queen [2007] NSWCCA 363; 180 A Crim R 267 at [30]-[31], the decision of the Victorian Court of Appeal in Kheir v The Queen [2014] VSCA 200; 43 VR 308 at [65]-[68] and the discussion in Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 15th edition, 2020) at [78.60].
Section 137
The appellant contended that the recognition evidence was required to be excluded under s 137 of the Evidence Act because “its probative value is outweighed by the danger of unfair prejudice to the defendant”.
The matters raised in support of this submission were a smorgasbord of potential criticisms of the recognition evidence:
(a)The existence of an inconsistency between the two officers’ descriptions of the appellant, one describing a thin wispy moustache, the other not recalling any facial hair.
(b)The possibility of suggestion arising from the appellant being a single person in police custody.
(c)The possibility of the displacement effect, the photographic image displacing the actual recollection of the appellant.
(d)The limited familiarity of the officers with the appellant.
(e)The absence of evidence about the process of identification or the conversation between officers about the investigation or the comparison between the CCTV footage and the appellant.
(f)The potential for overconfidence bias, including a professional bias, on the part of the police officers.
The magistrate was not asked to exclude the evidence under s 137 and did not have the opportunity to consider the arguments now put on appeal, either for the purposes of ruling on the admissibility of the evidence or, in determining what weight should be given to the recognition evidence. So far as (b) is concerned, there was in the appellant’s submissions to the magistrate only very brief reference to “suggestibility”. Further, so far as (e) was concerned, counsel for the appellant before the magistrate had the opportunity to cross‑examine the officers and any perceived deficiency in their evidence on this issue is attributable to a failure to make full use of that opportunity. Otherwise, the matters were not articulated before the magistrate.
It is important to note that for the purposes of s 137 the probative value must be weighed against the "danger of unfair prejudice" to the defendant. The danger of an unfair prejudice involves the risk that "the jury will use the evidence improperly in some unfair way”: R v Bauer (a pseudonym) [2018] HCA 40; 266 CLR 56 at [73]. This includes prejudice arising “because evidence has some quality which is thought to give it more weight in the jury’s assessment than it warrants or because it is apt to invite the jury to draw an inference about some matter which would ordinarily be excluded from evidence”: R v Dickman [2017] HCA 24; 271 CLR 601 at [48]. That prejudice may arise from procedural considerations such as the inability to cross‑examine a witness: Munro v The Queen [2014] ACTCA 11 at [20]-[28], [85]-[87] (although in that case it did not amount to unfair prejudice).
In a case such as the present, it is significant that the finder of fact was a magistrate and not a jury. Each of the matters which the appellant now wishes to point to as indicating a danger that the evidence might be misused is a matter which might have been the subject of the same submissions to the magistrate. Had those submissions been made, then they would undoubtedly have been considered and given appropriate weight by the magistrate in determining whether to accept beyond reasonable doubt the recognition evidence of the police officers. Having regard to the qualifications and experience of a magistrate there is no reason to believe that each of those matters would not have been take into account. They were not matters which would inevitably have required the evidence to have been given little weight: cf R v Marshall [2000] NSWCCA 210; 113 A Crim R 190.
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.
Conclusion
The appellant’s submissions were that the verdict was unsafe and unsatisfactory because once the recognition evidence was excluded there was no satisfactory basis for a finding beyond reasonable doubt that the person shown in the CCTV footage was the appellant who was present in the Magistrates Court. Having regard to my conclusions about the admissibility of the evidence of the police officers, the basis for that submission falls away. It was open to find the offence proved beyond a reasonable doubt on the basis which the magistrate did, namely, the recognition evidence of Constable Hill.
It is notable that no ground of appeal contended, and no submission was made, that the admission of the evidence of admissions made by the appellant inevitably resulted in a miscarriage of justice, even if the magistrate indicated that he reached his findings beyond reasonable doubt prior to considering that evidence.
As a consequence, the appeal must be dismissed.
The order of the Court is:
1. The appeal is dismissed.
| I certify that the preceding eighty-five [85] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 7 August 2020 |
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