R v BLICK [2000] NSWCCA 61 | Case summary

1 SHELLER JA: This appeal by Jesse David Blick is principally directed against the admission by the trial Judge of evidence of identification by photograph of the appellant during his trial on a charge of armed robbery, of which he was convicted, and concerns s137 of the Evidence Act 1995 and whether the evidence should have been excluded because "its probative value is outweighed by the danger of unfair prejudice to the defendant." This particular ground flowed into a more general ground of appeal that the admission of the evidence resulted in a miscarriage of justice. The appellant also claimed, in substance, that the verdict of the jury should be set aside on the ground that it was unreasonable or could not be supported. 2 The salient facts were these. On 11 June 1998, Nicholas Smail was employed as a sales assistant at Whitewood Warehouse, Brookvale. At 11am on that morning, a man asked Mr Smail for change for $2 which Mr Smail gave him. Present in the shop was another man who was standing to one side. Both men left the shop together. 3 At 3 pm in the afternoon, Mr Smail was in the office area when he heard a loud whack. He looked up to see a man at the counter with a wooden bedpost. This man demanded money from the cash drawer and reached over and grabbed the keys. Mr Smail opened the drawer and handed $200 cash in $50 notes to the man. The man demanded a small black bum bag in the shop which Mr Smail handed over to him. The bum bag contained $300 in cash, a cheque for $69, a Visa card, a couple of EFTPOS bankcards and $200 in change. The robber dropped the bedpost and left the shop. 4 Mr Smail rang the police who arrived shortly afterwards. He described the offender to the police. That description included a statement that the offender had a goatee beard. Mr Smail said in evidence that he thought the robber was the second man standing to one side on the earlier occasion that he described at 11 in the morning. 5 By 18 June 1998, the offender had not been apprehended. One of the investigating police officers, Detective Patison, came to the shop on that day when Mr Smail described to him the bum bag which had been stolen and its contents. Detective Patison then showed Mr Smail various items which Mr Smail identified as the bum bag and part of its contents. Mr Smail was also shown a bundle of photographs. The bundle consisted of twelve photographs of men, including one of the appellant. The photograph of the appellant was the only photograph of a man with a goatee beard. One of the other photographs was of a man with what could be described as a fringe beard which extended from his chin up the back of his cheeks. Mr Smail selected the photograph of the appellant as a photograph of the robber. 6 From 11 June 1998, Detective Patison had a suspicion that the appellant was the robber. That suspicion increased when he was given information on 18 June by a Mrs Pangallo whose son, Nathan, was a friend of the appellant. Mrs Pangallo said that the appellant had stayed at her house for a week beginning on 8 June 1998. On 15 June 1998, she noticed a black jacket in the hallway and as she picked it up, a bum bag fell out of it. In the bum bag were the cheque and various bankcards. She notified the police and subsequently handed the bum bag and its contents to Detective Patison. On 24 June 1998, the appellant was arrested and declined to be interviewed. 7 On 24 June 1998, Mr Smail made a statement in which he referred to the identification by him from the photographs and gave a further description of the offender. 8 The trial began on 24 February 1999. The appellant pleaded not guilty. After the jury had been empanelled, on the appellant's application to have Mr Smail's identification by photograph excluded, evidence was taken on the voir dire as to the admissibility of the photographic identification by Mr Smail on 18 June 1998. On 24 February 1999, Judge Howie gave judgment on the appellant's application. His Honour said that at the commencement of the voir dire he had been asked "to consider the exercise of my discretion principally under s137 of the Evidence Act in relation to the fact that identification in this case was conducted by photographs rather than by an identification parade." As the application proceeded, reliance was also placed on ss115 and 138 of the Evidence Act. His Honour concluded that the evidence was admissible and there was no basis on which he ought to reject it "in the exercise of my discretion". His Honour said: "The simple facts are that on 11 June 1998 a robbery occurred at a store. That robbery was committed by a single person against the victim, that person being armed with an offensive weapon. The person was in clear view of the victim. He was not in any way disguised and certainly no part of his face or body was hidden other than the normal street clothes that the person was wearing. There is little doubt in my mind that the victim in this matter had a good opportunity to observe the person who was perpetrating the offence against him subject of course to such matters as fear or anxiety or stress which might affect his ability at that time to record accurately the person who was threatening him. But the decision in this matter does not really rest upon what is generally called the observation stage in the identification process except to say this, there is in my view nothing about the observation stage at all which would indicate that the evidence of identification of the accused is in any way unreliable. A description was given by the victim shortly after to police. That description is in a very general way but clearly indicates features which are consistent with the accused as he appeared at the time according to the evidence which I have before me on the voir dire both as to height, build, race, but in particular by a description that the person who had attacked the victim had what the victim described as a goatee beard. Seven days later on 18 June the officer in charge of this matter returned to the store and spoke to the victim. At that stage the officer in charge had been given information which clearly implicated the accused in the commission of the offence. The officer has given evidence before me and quite frankly has stated that even from 11 June he had a suspicion that the accused was the person responsible. That suspicion increased dramatically when on 18 June he was given certain information as to the accused being in possession at about the time, or shortly after, the offence of the proceeds of the robbery. There is some dispute about that evidence but the Crown intends to call evidence which the jury could find would indicate that at a period shortly after the robbery the accused was present in a house for some period and that after the accused had left that house there was found in that house the bag and some of the proceeds of the robbery which were stolen by the robber. On 18 June the police officer approached the victim at the store, and at some stage asked the victim to have a look at a set of photographs. Also about that time he asked the victim to have a look at a bag and items which had been located at the premises to which I have earlier referred and which he had with him at that stage. It is unclear unfortunately now whether the victim was shown the bag and the items before he was shown the photographs. It does not seem to me however that the resolution of that matter or the existence of that confusion is very significant in the determination of this issue. The photographs that were shown to the victim are of a number of young men, one of whom is clearly the accused. Those photographs all appear generally to fit the description given by the victim except that there is only one person in that array of photographs who can in any way be described as having a goatee beard. That person is the accused. Otherwise it does not seem to me to be a particularly unfair set of photographs, no more so than is very often the case with photographs shown to victims in these circumstances. A short time thereafter the victim made a statement on 24 June in which he referred to the identification by him from the photographs and gave a further description of the offender. That description is a little fuller perhaps than the description he earlier gave but not substantially different, but of course that description is unreliable because it was a description given after he had seen the photographs. For some reason which is not apparent and seems quite inexplicable the victim made a statement on 18 June, the day he was shown the photographs and the purse, but does not mention the fact that he had made an identification of the accused from the photographs." 9 Detective Patison, on the voir dire, said that the reason he decided to embark upon identification by photographs rather than attempt to hold an identification parade was that as at 18 June, he was unaware of the whereabouts of the appellant even though he had made what the Judge considered to be reasonable enquiries to find him. Detective Patison therefore decided that he would show the photographs to the victim rather than have the matter delayed any longer on the chance of having the appellant arrested and the appellant agreeing to participate in an identification parade. Detective Patison indicated that he obtained the photographs from records he had available to him and chose those photographs which best fitted the description given by Mr Smail. Judge Howie observed: "Unfortunately however, there were few if any photographs of persons with goatee beards and moustaches." His Honour went on: "I have already indicated that there is some other evidence other than the evidence of the identification of the accused which would tend, or might tend, to suggest that the accused was the person who committed the crime. There is no doubt however that if the identification evidence is not admitted there is no evidence upon which the Crown could proceed. The other evidence in my view could not prove that the accused was the robber. However, it also seems to me that that other evidence is admissible to a certain extent and is evidence which could be used by the jury to support the identification." 10 Dealing with the application based on s115, his Honour said that he had come to the conclusion that the photographs did not of themselves reveal that they were pictures of persons in custody. In his view, s115 did not apply. His Honour continued: "Therefore the matter comes down to my discretion. Firstly, I have been asked to find that the evidence of the identification was improper in accordance with s138 of the Evidence Act. In my view I am not satisfied at all that there was any impropriety in what the police officer did." 11 The Judge pointed out that Detective Patison was in a difficult situation. On the one hand he had only one identifying witness. If he embarked upon photographic identification, there was no doubt he would not thereafter be able to have a meaningful identification parade. On the other hand, he had time running against him. He had over a period of a week made enquiries and investigations in an attempt to find the accused and had failed. He had been given information on that very day which indicated that the accused had left a particular address where he had been staying over this period. He had made enquiries and had been told that the accused was not living at his home. On the one hand Detective Patison could wait to see what would happen and hope that the accused was arrested shortly thereafter. On the other hand he could attempt an identification at a time when it could be reasonably expected that the victim would have a clear recollection of the robber. 12 Having put aside s138, his Honour continued: "The question then really comes down to the exercise of my discretion." He referred to Carusi v R (1997) 92 A CrimR 52. That case dealt with the identification of an offender from photographs at common law and by reference to the "Christie discretion" (R v Christie [1914] AC 545 at 559 and 564) whereunder a trial judge could exclude any evidence where its prejudice to the accused outweighed its probative value. In Christie at 559 Lord Moulton said: "The law is so much on its guard against the accused being prejudiced by evidence which, though admissible, would probably have a prejudicial influence on the minds of the jury which would be out of proportion to its true evidential value, that there has grown up a practice of a very salutary nature, under which the judge intimates to the counsel for the prosecution that he should not press for the admission of evidence which would be open to this objection, and such an intimation from the tribunal trying the case is usually sufficient to prevent the evidence being pressed in all cases where the scruples of the tribunal in this respect are reasonable. Under the influence of this practice, which is based on an anxiety to secure for every one a fair trial, there has grown up a custom of not admitting certain kinds of evidence which is so constantly followed that it almost amounts to a rule of procedure." 13 The comment has been made (see for example Ritchie's Supreme Court Practice, para 4235.2) that at common law, a trial judge in criminal proceedings had a discretion to exclude evidence if its probative value was outweighed by the risk of unfair prejudice that could follow from its admission. In contrast, s137 made it mandatory to exclude such evidence. 14 In R v Edelsten (1990) 21 NSWLR 542 at 551 this Court (Carruthers, Allen and Badgery-Parker JJ) referred to the trial Judge's discretion as one to exclude evidence that is technically admissible. Even though the evidence is admissible the trial Judge had a discretion to reject it. 15 Judge Howie observed of Carusi that there were many matters to be taken into account in the exercise of "this discretion" including the reasons why an identification parade was not undertaken and why preference was given to a photographic identification, the time at which it occurred and the circumstances surrounding it. His Honour concluded that he ought to apply that case and that no suggestion had been made to him otherwise. His Honour said: "In applying that case one of the considerations I have to take into account is [the] principle that this identification by photographs occurred at a time when the accused was well and truly a suspect for the commission of this offence. I have no doubt if the accused walked into the shop at that date on 18 June prior to the photographic identification he would have been arrested. Therefore prima facie, the weight of the argument would tend to favour rejection of the evidence. On the other hand one of the factors which the court says that can be taken … into account in allowing for the admission of the evidence notwithstanding that it has taken place at that stage, is the fact that the accused was not available for the purposes of an identification parade at that particular time. It also seems to me that it would be highly unlikely that police officers would be able, with ease, to gather a number of people together who would look like the accused, that is persons who would have facial hair which the accused shows in the photograph and which was observed by the victim in this matter. I feel it highly unlikely that the police could have a fair identification parade if they could not, as is, apparent find sufficient photographs which would have the same characteristics in their files." 16 The Judge reiterated that there did not seem to be anything improper in what the police did but said that he was sitting to determine "whether or not to exercise my discretion to reject this evidence." Amongst the factors he considered were the difficulties involved in identification evidence by way of photograph and the prejudicial aspects involved which he referred to. One such matter was that only one photograph showed a person with a goatee beard and that photograph was notable by reason of its shape, that is to say the shape of the photograph as a whole which was narrower and different from the shape of any of the other photographs. 17 Again the Judge referred to the exercise of discretion and R v Tugaga (1994) 74 A CrimR 190. His Honour said that generally "the discretion will be exercised where the trial judge believes that he or she cannot properly direct the jury in relation to the identification evidence pointing out, as is required under s116 of the Act and by the decision of the High Court in Domican v The Queen (1992) 173 CLR 555, all of the matters which would tend to indicate that the identification process is unreliable in some way." His Honour continued: "Some of those matters will be more apparent to a jury than others. In my view it will be readily apparent to a jury that the identification process in this case in relation to the recognition stage is flawed in that the only person who is shown in the photographs having a goatee beard and a moustache is the accused. Also that the accused's photograph is clearly different in shape and size to the other photographs in the array. The jury will no doubt be warned by myself during the course of the summing up as to that matter and told to take it into account when assessing the reliability of the identification evidence given by the victim in this matter. As I have already indicated, there does not seem to me to be very much at all that can be said to the jury about the recognition stage in the identification process apart from those matters to which I have already referred. The recognition stage occurred only seven days later and it is for the jury to look at the photographs and form their views as to whether or not that was a fair representation from which a proper and reliable identification can be taken and it would be apparent as I say to the jury the defects in that aspect of this identification process. The matter has troubled me to some degree because of the difficulty of knowing when one should intervene and exercise the discretion to reject the identification evidence which is otherwise probative and when one should leave it to the jury and trust the good sense of the jury and the directions and cautions that the trial judge has to give them. I am satisfied that this is a proper matter to go to the jury. I do not believe that there is any reason for me to exercise my discretion by reason of the fact that a photographic identification process was conducted rather than a line-up in light of the fact that the police officer believed that he could not locate the accused. I take into account of course that the accused was in fact located only seven days after the identification occurred, but there was nothing as I understand it in the evidence, nothing placed before me, to suggest that the accused was in the area or in the vicinity or would be located shortly thereafter. The police officer as I have already indicated was in the difficult situation of determining when it was that an identification process other than a line-up should take place. In my view, therefore, the evidence is admissible and there is no basis on which I ought to reject the evidence in the exercise of my discretion." 18 At common law a trial judge on the tender by the prosecution of photographic evidence to identify an accused person had first to determine whether the material was admissible. If it was, then on the Christie principle, the judge could refuse to admit it if of the view that its probative value was outweighed by its prejudice to the person accused. Section 137 makes inadmissible evidence adduced by the prosecutor in circumstances which are of the same kind. Confusion in approach is fuelled by the fact that s137 finds its place in Part 3.11 of the Evidence Act which is entitled "Discretions to exclude evidence". Also in that Part is s135 under the heading "General discretion to exclude evidence" which is expressed in terms of a power vested in the court and not in terms of a mandate to the court. 19 When an application is made by a defendant pursuant to s137 to exclude evidence, the first thing the judge must undertake is the balancing process of its probative value against the danger of unfair prejudice to the defendant. It is probably correct to say that the product of that process is a judgment of the sort which, in terms of appellate review, is analogous to the exercise of a judicial discretion; see the cases referred to by Priestley JA in Moran v McMahon (1985) 3 NSWLR 700 at 716 and following, particularly Lee Transport Co Limited v Watson (1940) 64 CLR 1 at 13 and Miller v Jennings (1954) 92 CLR 190 at 197. In the second of those cases, Dixon CJ and Kitto J, in an appeal against damages awarded by the trial judge, said of the sum awarded that it was "reached after a very full and careful examination of the facts of the case and it represents an informed judgment upon a matter which must largely be one of opinion and must be governed to a not inconsiderable degree by an estimate formed of the witnesses and in particular the appellant." Translated to the task set by s137, a trial judge's estimate of how the probative value should be weighed against the danger of unfair prejudice will be one of opinion based on a variety of circumstances, the evidence, the particulars of the case and the judge's own trial experience. In that sense, the result can be described as analogous to a discretionary judgment; see Heydon, 'A Guide to the Evidence Acts', 2nd ed, para 3.725. 20 Even so, and with due respect, there seems to me to be a risk of error if a judge proceeds on the basis that he or she is being asked to exercise a discretion about whether or not otherwise admissible evidence should be rejected because of unfair prejudice to the defendant. The correct approach is to perform the weighing exercise mandated. If the probative value of the evidence adduced by the prosecutor is outweighed by the danger of unfair prejudice to the defendant, there is no residual discretion. The evidence must be rejected. 21 It is not clear that the Judge in this case so approached this evidence. But no point was taken about the matter and apparently at the trial, the parties proceeded upon the basis of what had been said by the Court in Carusi. I shall say no more about it. 22 The appellant relied on three grounds of appeal in the notice of appeal. The third ground, that the sentence was manifestly excessive, has been abandoned. The first was, in substance, that the trial Judge erred in allowing evidence of Mr Smail's photographic identification of the appellant to go to the jury, and in particular erred in not rejecting it at the end of the voir dire. Counsel for the appellant developed this ground in a number of ways directed to the effect that the photographic identification would have in shoring up what was said to be a less than satisfactory verbal identification by Mr Smail on the date of the robbery and in making the evidence of identification in the statement given after the photographs had been examined and at trial of little worth. Such submissions point up the problems of photographic identification discussed by Hunt CJ at CL in Carusi with reference to what was said by the High Court in Alexander v The Queen (1981) 145 CLR 395. 23 In Carusi Hunt CJ at CL said that it is now beyond question that evidence of identification from photographs is relevant and therefore prima facie admissible. But, the use of such evidence presents very real dangers at the trial. His Honour referred to the inability of the accused, by contrast with a situation when an identification parade is held, to litigate any weaknesses in the way in which the photographic identification is made. Other dangers relate to the defects in the use of the photographs themselves, the "rogues gallery" effect, the "displacement" effect by which a witness may subconsciously permit the photograph to displace his or her memory of the offender and the limitations of the photograph itself. The Chief Judge said that the result is that there is always the danger that the jury will give to evidence of an identification from photographs a greater weight than it deserves. His Honour continued: "When that is added to what has been described as the seductive effect of identification evidence generally, ( Domican v The Queen at 561) the danger of the prejudice to the accused by its admission (for the reasons already outlined) is considerably heightened. Such prejudice can sometimes be lessened (but rarely removed) by appropriate directions to the jury. However, identification evidence (as with any other evidence) is subject to the common law ' Christie ' discretion, whereby the trial judge may exclude any evidence where its prejudice to the accused outweighs its probative value. That discretion plays a large part in all identification cases, and one test as to whether evidence of identification generally should be excluded is whether the quality of that evidence falls short of the point where its frailty or frailties cannot be cured by an appropriate direction or caution to the jury. Such evidence is also subject to another common law discretion whereby evidence may be excluded where the use of the evidence would result in an unfair trial for the accused." 24 In considering probative value, one must consider, it seems to me, the likelihood, as counsel for the appellant submitted, that Mr Smail had been alerted to the possibility that the offender had been apprehended by being shown, before he was asked to examine the photographs, the bum bag which he recognised and its contents which included some of the items which had been stolen. 25 At that time, a significant feature of Mr Smail's recollection of the offender was that he had a goatee beard. He may well have expected to find a photograph of a suspect in the bundle of photographs. Amongst the twelve he was asked to examine, the only one of a person with a goatee beard was that of the appellant. Furthermore, it was a photograph which gave the impression of having been substantially cut down for the purpose of the identification examination. I do not see how it could be said that an identification obtained by such a process was of great probative value. At the same time it results in unfair prejudice to the appellant. But it was not the probative weight of the evidence which gave rise to the prejudice; compare R v Truong (1996) 86 A CrimR 188 at 195. The prejudice to the appellant remained high although the method of obtaining the identification evidence greatly diminished its probative value. There lay its unfairness. 26 In his careful summing up which dealt at length with the question of identification, Judge Howie told the jury that the real issue which required their determination was whether the robber was the accused and that issue depended "upon the identification of the photograph of the accused as the robber by Mr Smail. That evidence of identification is at the very heart of the Crown case, it is really the basis of the Crown case, and without it you cannot convict the accused." In this context, his Honour pointed out to the jury that no other person in the array of photographs had any significant facial hair at all and told them to "look carefully at the range of photographs when assessing whether this was a reliable way of having the witness identify the robber." As his Honour said, had Mr Smail identified a person with a goatee beard rather than the person who robbed him. 27 In Alexander the High Court, as well as pointing out the various difficulties involved in identification from photographs, pointed up that often photographic identification is a necessary if not essential tool in criminal detection. At 400 Gibbs CJ said of an identification parade held for the purpose of identification that "it goes without saying that precautions must be taken to ensure that no prompting, suggestion or hint is given to the witness that any particular member of the group is the suspect. For example, it would be unfair and improper to show to a witness, before the identification parade was held, a single photograph of a person who was said to be the suspect, and it would be unsafe to act on evidence of identification given in those circumstances: R v Russell (1977) 2 NZLR 20 at 27." 28 Judge Howie accepted that in the present case, particularly to achieve identification early rather than later and when the whereabouts of the suspected robber were not known, to choose to have Mr Smail identify the robber by the examination of photographs was not improper or unreasonable. There is no reason to challenge this conclusion. But, unfortunately, to show Mr Smail a group of photographs in which only one was of a man with a goatee beard, when that was an identifying factor in Mr Smail's mind, is, in my opinion, little better than showing him only one photograph, the photograph of the appellant. The prejudice to the appellant was both unfair and very considerable because it placed firmly in the mind of Mr Smail the photographic image when he came to make his statement and to give evidence at the trial. 29 The probative value of an identification in those circumstances was particularly low. The unfair prejudice was substantial particularly when it is remembered that the photographic identification was an essential feature in the Crown case. In my opinion, on the application to reject the identification evidence based on the photograph, there could only be one conclusion and that was that the probative value of Mr Smail's identification evidence by reference to the photographs was outweighed by the danger of unfair prejudice to the defendant. Accordingly, the Court was bound to reject that evidence. 30 I propose the following orders:

R v BLICK

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