R v Cook [1998] NTSC 125; 130 NTR 28

imprisonment under s210(1) of the Criminal Code. On 27 March I sentenced

Mr Cook to imprisonment for 12 months, and fixed a non-parole period of 6

months. I also ordered that he make restitution of the stolen items. On the

same day, 27 March, an appeal against conviction was lodged. Several

grounds of appeal related to the admission into evidence at the trial of the

testimony of one Stephen Kelk; the background to that aspect is as follows.

On 23 March, the first day of the trial, in the absence of the jury,

Mr Donaldson of counsel for Mr Cook objected to the admissibility of

evidence which the Crown proposed to adduce from Mr Kelk. He further

submitted that, if this evidence was admissible, it should nevertheless be

excluded from the evidence before the jury, as a matter of discretion, because

its prejudicial effect outweighed its probative value.

the whole of some 8 hours of video film taken by a security camera in the

jewellery store on 2 August 1996, should be viewed by the jury. After

viewing a 23-minute segment of this film and considering counsels

submissions and the authorities cited, I ruled that Mr Kelks evidence, in the

terms it was foreshadowed to be given, was admissible and should not be

excluded in the exercise of the prejudicial/probative discretion (R v Swaffield

[1998] HCA 1; (1997-98) 151 ALR 98 at 119-120); and that the whole of the 8-hour film need

not be viewed by the jury. I said that reasons would be provided for that

On 12 May 1998, some 7 weeks after the ruling and the conclusion of the

trial, counsel for Mr Cook asked me to state the reasons for the ruling of

23 March. I raised the obvious concerns about a Judge providing reasons for a

decision after the institution of an appeal which challenged that decision,

particularly where, as here, a fairly lengthy period had passed since the

submissions were ruled on, and the appeal instituted. Since counsel

nevertheless pressed the request, and the Crown prosecutor did not oppose it, I

said I would accede to it. The reasons in question, follow.

Various persons in the store on 2 August 1996 appeared on a 23-minute

segment of that days security film. This segment consisted of 2 short

sequences, separated in real time by about 1� hours.

the store include one Vivian Silvester, who earlier on 23 March 1998 had

pleaded guilty to the theft of the jewellery on 2 August 1996. On two separate

occasions, about 1� hours apart in real time, a person is seen on the film

segment, each time walking around the store, then crawling under one of the

shop counters to enter an area, not open to the customers, where the stolen

jewellery was then on display; and later emerging, undetected by store staff,

and walking off. Ms Silvester admitted on her plea that she was that person.

The film segment shows that other persons were present in the store on both

occasions that Ms Silvester was there; they include a man wearing a cap and

The Crown case is as follows: it was only on those 2 occasions that day,

that Ms Silvester was present in the store; Mr Cook was one of the other

persons in the store, on both of those occasions; while in the store he

deliberately distracted the attention of staff, thus enabling Ms Silvester to

At the time of the theft, the Police could not identify the persons seen on

the security film. They arranged for a short part of this segment of the

security film, some 30 seconds in all, showing Ms Silvester and the others

present on the two occasions she was in the store, to be screened by a Darwin

television station 4 days after the theft, as part of its ordinary evening news

programme on 6 August. Viewers were asked if they could recognise any of

the people who appear on the film. Mr Kelk, a resident of Darwin, formerly

an Agent with the Australian Federal Police, happened to see this evening

news item at his home. He contacted Territory Police stating that he

recognized Mr Cook as one of the persons then present in the store. It was

Mr Kelks evidence identifying Mr Cook as a person in the store at the

relevant times, which Mr Donaldson sought to have excluded from the

The 23-minute film segment consists of silent bla ck-and-white footage.

The security camera is located in an elevated position in the store. It uses a

,,fish-eye lens, to take in a bigger area, and is directed downwards at an angle

of about 60 degrees. The curved lens causes some distortion of the film

image; the downwards angle means that faces are not seen straight on, or in

straight profile. The man seen on the film, alleged by Mr Kelk to be Mr Cook,

wears a cap and large sunglasses, throughout; these obscure his facial features

to a considerable degree, and the opportunities on the film for a relatively

open view of his face are very limited. They are such that I consider that any

conviction based on the jurys own viewing of the film and its conclusion

therefrom, by comparing the man in the film w ith the man in the dock before

them (Mr Cook), that Mr Cook and the man in the film are one and the same

person, would be unsafe. However, this was not to be an issue in the trial: the

Crown expressly conceded that the jury could not safely make such an

identification, by comparing what they saw on the security film with Mr Cook

Indeed, that was why the Crown sought to introduce Mr Kelks

identification evidence, and to ascertain fr om him how it was that he claimed

to be able to recognize Mr Cook from the film. Mr Elliott the Crown

Prosecutor informed me that Mr Kelks evidence would be as follows. He had

spontaneously identified Mr Cook, as a matter of recognition, when he saw the

short film segment on the television news item on 6 August 1996. He

recognized Mr Cook at that time because as a Federal Agent he had carried out

surveillance on him on two previous occasions. The first occasion was in

June 1993, at a distance of 5 metres and for 20 minutes at Sydney Airport; the

second was in August 1993 at a distance of 4 metres and over 5 to 6 hours in

the Criterion Hotel in Sydney Mr Elliott conceded that the introduction of

evidence that a police officer had surveilled Mr Cook, itself raised the

possibility of Mr Cook suffering prejudice in his trial; he submitted that that

was unavoidable, and any such prejudice could be cured by an appropriate

direction to the jury. On a third occasion, in February1996, although Mr Kelk

was not at that time carrying out surveillance on Mr Cook, he believed that he

had seen Mr Cook for a couple of minutes at a distance of 3 metres, at the

Casuarina Shopping Centre in Darwin. So, in all, Mr Kelks recognition of

Mr Cook as the man with cap and sunglasses seen in that segment screened on

the evening TV news programme, was based on these 3 earlier encounters he

Mr Donaldson submitted first that Mr Kelks identification evidence was

in the nature of opinion evidence, and inadmissible as such; alternatively, it

was inadmissible because Mr Kelk lacked the particular expertise which would

enable him to give such opinion evidence. Second, if admissible, his evidence

should nevertheless be excluded as a matter of discretion, because its

prejudicial effect would outweigh its probative value; this stemmed from the

fact that it would be necessary for the Crown to show why Mr Kelk could make

the identification on 6 August � that is, to elicit the basis for his identification

� and this meant adducing from Mr Kelk that his previous surveillance of

Mr Cook was as a Federal Agent. Evidence to that effect would have a

prejudicial effect on Mr Cook in his trial, one which no direction to the jury

Mr Donaldson relied on Griffith (1995) 79 A Crim R 125, a case where 2

police officers had opined in court (over objection) that the accused

(appellant) was the person shown in a security camera photograph wearing a

stocking mask which distorted his facial features. (In the present case the cap

and sunglasses worn by the man in the store obscured for most of the time a

clear view of his face). The officers in Griffith (supra) were not qualified as

experts on the effects of stockings in distorting facial features, but relied on

their knowledge of the past appearance of the appellant, though one of them

had not seen him for 9 years. Allowing the appeal against conviction, the

Court of Appeal (Qland) treated the 2 police officers as non-expert witnesses,

"sometimes ... applied in considering the admission of opinion evidence,

namely that non-expert witnesses are not ordinarily allowed to give

opinions when their inferences are such that ,,the jury can be put into a

position of equal vantage for drawing them: Wigmore on Evidence,

A non-expert witness who is called to tell the jury whether in his opinion

one object which is present in court resembles another which is present in

court is, as it seems to me, covered by this rule. Here, one object was the

"That knowledge [by the police officers, of the appellants past

appearance] did not give the officers any advantage over the jury. ...

ordinarily opinion evidence that a person present in court (but observed

by the witness at earlier times) looks very much like a person depicted in

a photograph before the court will not be admitted where there is no

circumstance giving the witness in question a substantial advantage over

In my opinion, the passage emphasized does not apply to the evidence of

Mr Kelk. His evidence would be that his previous knowledge of Mr Cook had

enabled him spontaneously to identify Mr Cook out of court on 6 August, as

the man he saw on the television news item that evening, and (later) from the

23-minute film segment. In general, I think that a witness may give evidence

of having recognized (as a result of previous encounters) an accused out of

court, from photographs or film taken during the commission of a crime. I

note that this appears to have been the approach adopted in R v Palmer (1981)

NSWLR 209 at 213 and 214 and in Smith (1983) 10 A Crim R 358 at 360 (both

of which were cited in Griffith (supra)), in relation to several witnesses; and

also in R v Goodall [1982] VicRp 3; [1982] VR 33 at 37-39, in relation to the evidence of 2

police officers; and in Kajala v Noble [1982] Crim. L. Rev. 433, where

however there was no objection to the evidence. I consider that Mr Kelks

evidence of identification was used in the detection process, and is admissible

in evidence; see Alexander v The Queen [1981] HCA 17; (1980-81) 34 ALR 289 at 305-6 per

I note that their Honours in Griffith (supra) immediately qualified the

breadth of the exclusionary approach they had enunciated (p7); they said that

it does not apply if there is some circumstance "giving the witness in question

a substantial advantage over the court". Assuming the exclusionary approach

enunciated in Griffith (supra) is correct and applicable here, the critical

question would be: does Mr Kelks previous observations of Mr Cook give

him "a substantial advantage over the court" on the identification issue. The

Crown did not rely on Mr Kelk as a person with particular expertise in the art

of surveillance generally; it put him forward as a person with particular

expertise in identifying Mr Cook specifically. It was this expertise, in turn

based simply upon his having observed Mr Cook in detail and at length in the

course of his earlier surveillance work, upon which Mr Elliott relied as giving

Mr Kelk the necessary "substantial advantage over the court".

The approach in Griffith (supra) was applied some 4 months later by the

majority in R v Hanson (unreported, Court of Appeal (Qland), 29 August

1995), where the Court of Appeal itself raised the point whether certain

identification evidence was admissible. There the witness was a prison officer.

He had purported to identify the accused (appellant) as having been one of the

occupants of a particular room in the prison, during a prison riot.

Mr Donaldson noted that in contrast with Mr Kelks previous limited

observations of Mr Cook, the prison officer in Hanson had seen the person in

question on the security film in circumstances in which he was able to

(supra) as a case where there was a stronger basis for the identification

evidence than in this case, but nevertheless, the majority in that case was not

satisfied that the officer had any "substantial advantage over the members of

the jury in identifying the appellant from the video film", and considered that

Their Honours noted that the officers evidence seemed to suggest that he

had "positively recognized the accused". The basis for that recognition is

spelled out in the judgment of the other member of the Court, Shepherdson J,

who noted the officers evidence "that he knew everybody" in the relevant

area, having been working there for about 8 weeks before the riot.

His Honour, dissenting on whether the officers evidence should be excluded,

considered that his evidence was "relevant and admissible", citing, inter alia,

R v Grimer [1982] Crim. L. Rev. 674, a case somewhat akin in its facts to the

present, and R v Fowden and White [1982] Crim. L. Rev. 588. His Honour

considered that Griffith (supra) did "not apply to the present appeal".

The Crown stressed that in this case Mr Kelks previous observation of

Mr Cook had not been in a normal everyday setting in which someone is

merely casually cognisant of anothers presence; it had involved his

concentrating upon observing Mr Cook for the periods mentioned (p5).

Mr Elliott said that the evidence that Mr Kelk would give would not merely be

that he considered that the person in the film "looks very much like" Mr Cook,

as mentioned in the Griffith formulation (p7); rather that, on seeing the short

segment of film screened on the television news, he had then and there

spontaneously identified the person as Mr Cook. This point was apparently

made in light of Shepherdson Js observation in Hanson (supra) that the

prison officer had "positively identified" the appellant, and was not saying

With respect, I consider that the analysis of the law by Shepherdson J in

Hanson (supra) is correct, and his Honours conclusion that the evidence in

question in that case was "relevant and admissible", also applies in this case.

I consider that the evidence of Mr Kelk is admissible. In a case such as this I

consider that evidence may be given by a non-expert person, not an eye-

witness to the alleged incident, whose evidence is that having seen the security

film he recognizes the person in it as the accused. His recognition evidence is

akin to that of an eye-witness at the incident who there saw someone he

recognized because he had seen him before, and could say so to the jury. The

weight of such evidence is another matter, and depends on the circumstances.

Whether evidence should be excluded on prejudicial/probative

I turn to Mr Donaldsons second submission (p6), that perhaps the most

significant objection to the reception of Mr Kelks evidence was that its

prejudicial effect on the accused outweighed its probative value; therefore it

should be excluded, as a matter of discretion. In Griffith (supra), the majority

said at 129 that even if the police officers evidence had been admissible, it

should have been excluded in the exercise of the trial Judges discretion

"[a]lthough the opinion of the police officers on the similarity point was

of no real significance, it was capable of prejudicing the d efence, because

bringing out the foundation of the officers opinion involved giving the

jury more information bearing upon past contacts between the appellant

and the police than they would otherwise have had".

Their Honours view that the opinion of the police officers that the accused

was the person in the photograph was "of no real significance", was

presumably because they considered the officers had no "substantial advantage

Mr Donaldson submitted that similarly in this case it would be necessary

for the Crown to reveal to the jury the basis of Mr Kelks identification, even

if that were limited, as the Crown had indicated, merely to the fact of some

earlier surveillance of Mr Cook by Mr Kelk in his capacity as a Federal Agent.

This would result in unfair prejudice to the accused, not curable by directions

to the jury. Further, he could not properly cross-examine Mr Kelk, without

going into those areas of prejudice. I note that in R v Fowden & White

(supra), a shoplifting case, the Court of Appeal (Eng.) held that the evidence

of witnesses (who knew both accused) that they were the persons seen on a

video security film, should not have been admitted, because the circumstances

were such that the defence could not test the accuracy of that identification,

without thereby being prejudiced and embarrassed. However, in that case, the

circumstances were that the identifying witnesses knowledge of the accused

stemmed from a similar shoplifting case a week later; I consider that the

devastating prejudicial effect of eliciting that that was the basis of their

identification evidence clearly outweighed its probative value. The present

I have already indicated (p10) that I consider that Mr Kelks evidence is

admissible. I consider that, limited in the way the Crown proposes, it could

not be said that revelation to the jury of the basis of Mr Kelks identification �

his surveillance as a Federal Agent of the accused as indicated on p5 - would

cause unfair prejudice to the accused, not curable by appropriate directions to

the jury. Nor in my opinion would relevant cross -examination of Mr Kelk be

As to the other aspect of my ruling of 23 March � that the whole of the 8-

hour security film need not be screened before the jury - Mr Elliott said that

he would lead evidence, if required, that the whole of the 8 hours of video had

been viewed and that it was only on the two occasions now condensed into the

23-minute segment now proposed to be screene d to the jury, that either

Ms Silvester or the person alleged to be Mr Cook, was in the store. In that

event, I did not see any unfairness to the accused in not screening to the jury

These are the reasons for the ruling of 23 March 1998 (p2).