Smith v The Queen [2001] HCA 50 Date of Order: 21 June 2001 Date of Publication of Reasons: 16 August 2001 S233 and S234/2000
ORDER
1. Appeals allowed.
2. Order of the Court of Criminal Appeal of New South Wales of 21 October 1999 set aside. In place thereof order that the appeals to that Court be allowed, that the conviction and sentence be quashed, and that there be a new trial.
On appeal from the Supreme Court of New South Wales
Representation:
P Byrne SC with M D Austin and T S Corish for the appellant (instructed by Sydney Regional Aboriginal Corporation Legal Service)
M G Sexton SC, Solicitor-General for the State of New South Wales with R D Ellis and B K Baker for the respondent (instructed by S E O'Connor, Director of Public Prosecutions (New South Wales))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Smith v The Queen
Criminal law – Evidence – Relevance – Identification – Evidence of recognition by police officers of the accused in photographs from bank security cameras – Police officers in no better position than jury to compare appearance of accused with photographs – Evidence Act 1995 (NSW), s 55 – Whether evidence could rationally affect the assessment by jury of probability of the existence of a fact in issue – Whether admissible as opinion evidence.
Evidence – Relevance – Opinion or fact evidence – Evidence Act1995 (NSW), s 55 – Evidence of recognition by police officers of accused in photographs from bank security cameras – Whether relevant – If relevant whether excluded as opinion evidence.
GLEESON CJ, GAUDRON, GUMMOW AND HAYNE JJ. On 21 June 2001, the Court made orders setting aside the order of the Court of Criminal Appeal and in place directing that there be a new trial of the appellant. What follows are our reasons for joining in the orders that were made.
The appellant was indicted in the District Court of New South Wales on a charge that, on 26 June 1997, being in company with others, he robbed two bank officers of a sum of money which was the property of the bank. To that charge he pleaded not guilty but he was convicted. His appeal to the Court of Criminal Appeal against conviction was dismissed[1].
That there had been a robbery of the bank by four young men was not in issue at the appellant's trial. Bank security cameras had taken photographs showing what happened. The prosecution's case against the appellant was that he was the person who was shown in the photographs, standing near the back of the automatic teller machine, apparently keeping lookout while the co‑offenders took the money.
It…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Smith v The Queen [2001] HCA 50
Case
[2001] HCA 50
Decision Date
CaseChat Overview and Summary
This case concerned an appeal by the appellant, Smith, against his conviction for robbery. The central dispute revolved around the admissibility of evidence provided by two police officers who identified the appellant in security camera photographs taken during the bank robbery. The appellant argued that this identification evidence was inadmissible. The matter was heard by the High Court of Australia.
The legal issues before the High Court were whether the police officers' evidence, identifying the appellant in security camera photographs, was relevant under section 55 of the *Evidence Act 1995* (NSW). If found to be relevant, the court also had to determine whether this evidence was inadmissible as opinion evidence under section 76 of the Act, or if it could be admitted under other exceptions. The court also considered whether the evidence was unfairly prejudicial.
The High Court reasoned that the police officers' evidence was relevant because it could rationally affect the jury's assessment of the probability that the appellant was one of the robbers. The court noted that the photographs often obscured the perpetrator's face, and the police witnesses had had repeated opportunities to observe the appellant in daylight and in motion, potentially placing them in a better position than the jury to make an identification. However, the court ultimately concluded that the evidence given by the police officers was evidence of opinion, not direct fact, and was therefore inadmissible under section 76 of the *Evidence Act 1995* (NSW).
The appeals were allowed, the order of the Court of Criminal Appeal of New South Wales was set aside, and in its place, the appeals to that Court were allowed, with the conviction and sentence being quashed. A new trial was ordered.
Orders
Orders of the court
1. Appeals allowed.
2. Order of the Court of Criminal Appeal of New South Wales of 21 October 1999 set aside. In place thereof order that the appeals to that Court be allowed, that the conviction and sentence be quashed, and that there be a new trial.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
The jury retired again and later returned with a verdict of guilty. The appellant was convicted and sentenced. The police evidence was relevant Against the background of the conduct of the trial, as I have described it, it is not possible, in my respectful opinion, to determine this appeal on the basis that the evidence of the two police officers was inadmissible as not relevant, directly or indirectly, to a fact in issue. The evidence of the police officers addressed the question whether the appellant was the person represented in the photographs, which incontestably recorded the actual events of the robbery. If the police evidence were accepted, it could therefore rationally affect, at least indirectly, the assessment by the jury of the probability of the existence of a fact in issue, namely whether the appellant was one of the four participants in the robbery at the bank on 26 June 1997. In past decisions, it has been observed that such identification evidence may be relevant if the jury require further assistance on the interpretation of photographs; if the appearance of the accused has changed and the witness can testify to the specific appearance at the time of the offence[27]; or if the witness has an advantage over the jury based on sufficient familiarity with the accused or other expertise[28]. Approached in that way, there are several grounds for upholding the relevance of the police evidence.[27]Stockwell (1993) 97 Cr App R 260 at 263‑264.[28]R v Tolson (1864) 4 F & F 103 [176 ER 488]; R v Palmer [1981] 1 NSWLR 209; R v Grimer [1982] Crim LR 674; R v Goodall [1982] VR 33; R v Smith (1983) 33 SASR 558. In most of the photographs, the features of the person alleged to be the appellant were partially hidden by a hood pulled over the head. It is not unusual for those who participate in crimes of this character to attempt to disguise their features[29]. A jury, invited to identify the participant as the accused from photographs with such impediments, might, quite properly, hesitate to do so solely on the basis of their own observations of the photographs as compared to the appearance of the accused before them. The jury's hesitation in this case is demonstrated by their request for a magnifying glass and the two questions they put to the trial judge. Members of a jury watch a person such as the appellant (especially where, as here, that person gives no evidence) sitting immobile in the courtroom. The police witnesses had repeatedly viewed the appellant in daylight. They had seen him in motion. They had observed him from different angles. They had had the opportunity to view him engaged in varying and more natural facial movements.[29]eg R v Smith (1983) 33 SASR 558 (offender wearing balaclava); R v Griffith [1997] 2 Qd R 524 (offender wearing stocking mask). At least one of the photographs before the jury depicted the face of the person alleged to be the appellant from an angle where it was better lit and more clearly discernible. In such circumstances, the acceptance of the evidence of two witnesses who spontaneously and separately identified the participant as the appellant, on the basis of their repeated contacts with the appellant in the six months prior to the recording of the photographs and act of recognition, cannot in my view be said to be incapable, even indirectly, of rationally affecting the assessment by the jury of the probability that the appellant was present during the robbery. Decision-makers, in such circumstances, could properly consider that the witnesses were better placed to recognise the person in the photographs than they were.
Decision
Reasons for decision
GLEESON CJ, GAUDRON, GUMMOW AND HAYNE JJ
KIRBY J
Concluding as I do that the evidence of the police officers was relevant in the sense provided by the Act, it is appropriate to return to the issues that emerged in these proceedings before relevance was raised in this Court. The Court of Criminal Appeal resolved these issues against the appellant. It is therefore necessary to start my own analysis by recalling what that Court held.The decision of the Court of Criminal Appeal The reasons of the Court of Criminal Appeal for rejecting the appellant's appeal were given by Sheller JA[37]. His Honour recounted the evidence and the ruling of the trial judge. He then addressed himself to s 76 of the Act which provides:"Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed."[37](1999) 47 NSWLR 419 (Grove and Hidden JJ concurring). The difficulty which the common law had experienced in defining "opinion" was acknowledged. His Honour referred to texts ancient[38] and modern[39], as well as decisional authority concerned both with the common law[40] and the several versions of the Act[41]. He cited Wigmore to make the point that no sharp distinction between "opinion" testimony and "fact" testimony is scientifically possible[42]:"We may in ordinary conversation roughly group distinct domains for 'opinion' on the one hand and 'fact' or 'knowledge' on the other; but as soon as we come to analyze and define these terms for the purpose of that accuracy which is necessary in legal rulings, we find that the distinction vanishes, that a flux ensues, and that nearly everything which we choose to call 'fact' either is or may be only 'opinion' or inference."[38]Cornewall Lewis, An Essay on the Influence of Authority in Matters of Opinion, (1849) at 1-2.[39]Cross on Evidence, 6th Aust ed (2000) at 808‑809.[40]eg R W Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 34 NSWLR 129 at 130, cited at R v Smith (1999) 47 NSWLR 419 at 422 [17].[41]Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd [No 5] (1996) 64 FCR 73 at 75, cited at R v Smith (1999) 47 NSWLR 419 at 422 [17]; see also Hughes Aircraft Systems International v Airservices Australia (1997) 80 FCR 276 at 279‑280.[42]Wigmore, Evidence, Chadbourn rev ed (1978), vol 7 at §1919, cited at R v Smith (1999) 47 NSWLR 419 at 422‑423 [18]. It was upon this footing that, whilst acknowledging the dangers of identification evidence (especially from photographs), Sheller JA concluded[43]:"The evidence given by the police officers was not evidence of an opinion but was direct evidence that a person shown in the photograph was the accused. As such it was not excluded by s 76 of the Act. Accordingly, there is no need to consider the application of s 78 or other statutory exceptions to the opinion rule."[43]R v Smith (1999) 47 NSWLR 419 at 424 [24]. His Honour also rejected the challenge to the refusal of the trial judge to exclude the evidence as unfairly prejudicial or as inadmissible identification evidence[44]. It was for these reasons that the appellant's appeal was dismissed.[44]R v Smith (1999) 47 NSWLR 419 at 424 [25]‑[26].The police evidence was of opinion not fact
Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ, GAUDRON, GUMMOW AND HAYNE JJ,
KIRBY J