R v Marsh [2005] NSWCCA 331 | Case summary

(ii) the learned trial judge erred in admitting the CCTV surveillance photographs." 4 The critical factual issue for the jury at the trial was the identification of the offender, of whom photographs were taken by the bank's security cameras whilst he was at the counter in the bank, as he left the counter, and as he was passing through the front doors of the bank when leaving it. Those photos were admitted into evidence, and hence the second ground of appeal. After the photos were developed, a police officer sent one of them to the media, and on 27 June 2002 the Newcastle Herald published that photo with an accompanying article. The appellant's sister saw the published photo and the article, claimed to recognise the appellant and notified the police. 5 The trial judge, in proceedings on the voir dire, ruled the evidence by the appellant's sister to be admissible. 6 Four witnesses to the robbery participated in photo identification parades. None of them selected the appellant's photo as being the photo of the robber. The four witnesses were two tellers working in the bank at the time, a sales consultant who was present in the bank and a 12 year old boy who saw a person running from the bank. One of the tellers was the teller who dealt with the offender. 7 The appellant gave evidence at the trial. He denied committing the crime. He had no specific recollection as to what he was doing on the day of the robbery but at about that time he was doing some work at his father's house. He said he had not worn a blue denim jacket for ten years. 8 The appellant's stepmother gave evidence that in June 2002 the appellant was painting and renovating at the house where she lived with the appellant's father. She said that the appellant was working at the house on 21 June 2002 because she had an entry in a book that she was keeping to that effect. There was cross examination which gave rise to some question as to the reliability of the entry in the notebook for 21 June 2002. 9 It is acknowledged by the Crown that the evidence of Ms Wood was critical and that without it there was insufficient evidence to support a finding of guilt. 10 It is here submitted on behalf of the appellant that the evidence of the appellant's sister was in no different position from the evidence of the two police officers in Smith v The Queen (2001) 206 CLR 650 and hence that it should have been excluded for the very same reasons as the evidence of the police officers was determined to be inadmissible. In Smith, the police officers were permitted to give evidence at the trial of prior dealings with the appellant and that one of the robbers depicted in security camera photographs was the appellant. His appeal succeeded in the High Court. Gleeson CJ, Gaudron, Gummow and Hayne JJ considered the evidence of the police officers was inadmissible because it was irrelevant, and Kirby J considered it was inadmissible as opinion evidence by reason of s 76 of the Evidence Act. 11 The first ground of appeal calls for close examination of the evidence of Ms Wood. Ms Wood said she grew up with her brother, and that "I've been with my brother nearly all my life" (T 6, 2 June 2004). The appellant was born on 6 March 1957 and Ms Wood was six years younger than him. The last time Ms Wood had seen her brother prior to June 2002 was just before Christmas 2001, and she saw him often in the years prior to that. She said: "Sometimes we'd see Robert for a couple of weeks and a row of weekends and then all of a sudden we wouldn't see him for a few months." 12 Ms Wood said that she contacted the police the day after she saw the photograph in the newspaper, and as to that photograph her evidence was as follows (T 1, 2 June 2004): "Q. And when you saw that photograph, what did you think? A. Straight away I knew it was Robert, no doubt about it. Q. Robert, that being your brother? A. Yes. Q. And why did you think it was him? A. It's him, it's his stature, it's his jacket, it's his face, it's his stance." 13 Then, in cross examination (T 2-4): "Q. And one of your bases for identification is the jacket that is shown in the photograph and that you say was his jacket? A. Oh, yes. Q. What colour? A. Denim. Q. What colour? A. Light blue. Q. Light blue? A. Not the lightest blue, no, it's a denim jacket that obviously you've worn for years. Q. Yes? A. So of course it's a bit wishy washy. Q. But you say a clear blue, do you? A. You can't say that because it's not a brand new jacket and it's not a jacket that's been - and you've bought it as a jacket that's already been dyed that way. It's a jacket that's been worn and washed a lot of times. Q. But you say it's a denim blue, don't you? A. Yes, I do. Q. The photo doesn't show a colour of a jacket, does it? A. No, it doesn't. Q. No. And you understand, don't you, that even if it's a denim jacket shown in the photo, that they can be of different colours, can't they? A. Oh, for sure. But when you see someone wear that same jacket constantly and how it fits that person, I'm pretty damn sure what it is, I'm positive. Q. But part of your reliance is that it's a blue denim jacket, isn't it? A. Yes. ………… Q. Oh, so when did you say you last saw him wear a blue denim jacket? A. We had a lot of family barbeques at my sister's house and Robert would wear it a lot, and it was just something we always knew that Robert would have on, is his denim jacket. Q. I'm asking you a specific question, I'll do it again in case you're unclear. When was the last time you say that you saw him wear a blue denim jacket? A. I can't give you a specific date, no, I'm sorry. Q. Well could it have been over 10 years prior to 2002 since last you saw him wear a blue denim jacket? A. I would say it would have been probably around the winter of 2001. Q. You don't know, do you? A. You see that's something that he wore all the time. I can't give you a specific date, I'm sorry, I can't give you a specific date. Q. You see what I'm suggesting to you is that indeed your brother wasn't or did not wear regularly a blue denim jacket, step one, question one? Do you understand it? A. Yeah, I understand it. Q. And that the last time he had a denim jacket, a blue denim jacket was some 10 years before 2002? A. No, I'm telling you that he would have easily have worn it in the winter of 2001 when he'd have been at our place for barbeques, my sister's place, or just visiting. It was always in the back of his car. Q. But you have no specific recollection of that, do you? A. I can't give you that, no. Q. And indeed the most you can remember is that once upon a time he had a blue denim jacket? A. He's always had a blue denim jacket…" 14 Later in cross examination (T 5-6): "Q. You also say that you rely on his stance or, to put it another way, properly, the person depicted in the photos stance? A. Yes. Q. Correct? A. Yes. Q. As indicating your brother? Is that right? A. Yes. Q. Somebody who appears to be walking away from a teller area, that's what you rely on, do you, at least in part? A. I wouldn't have made the statement if I didn't. Q. And stature, you say? A. Yes. Q. What do you mean by stature? A. His stance, the way a person has their stand, the way they hold themselves. Q. And all from that photo? A. I've been with my brother nearly all of my life, I know photos, I know who he is. Q. Yes, you're looking at a photo of somebody who appears to be walking away from a teller area? A. Yes. Q. That's it? A. Yes. Q. And you say that from that you can get stance equivalent to linking to anyone, do you? A. I'm sorry, sir, but I know what I saw in the photo and I believe that's him. I'm sorry if you don't agree with me." 15 The witness went on to observe that her brother was more thin in the bank photo than he had been just prior to Christmas 2001. That emerges from these questions and answers (T 6-7): "Q. You say you also rely on the face you see in the photograph? A. Yes, he was very drawn out that time, yes. Q. He was very what? I missed that. A. Drawn out. Q. Drawn out? A. Yes. He'd got quite thin. Q. All right. The time before - well the last time you saw him-- A. Yes. Q. -you say was just before Christmas 2001, do you? A. Yes. Q. And you say, do you, that he wasn't drawn out and thin then? A. Christmas? No, the photo of Robert that was taken at Christmas he'd got quite bloated at that time, but then between then and when that photo was taken, from family members who had seen him have all said he's-- Q. Well I'm just asking you? A. Yes, go ahead. Q. Not any - not for you to reflect on anyone else's views? A. Fine, yes. Q. Right? A. Yeah. Q. I'm asking you this, and I'll put it to you again. When last you saw him you say that his face was full? A. Yeah, he was quite bloated, if that's the right word, yes. Q. And you say the person shown in that photograph doesn't have a bloated face - A. No, he's got quite sick. Q. -as when you last saw your brother? A. Yes. Q. Am I clear? A. Yes, you're clear. Q. I'm not asking you to speculate? A. No, I know that. Q. So the person in the photograph has a thinner face than your brother had when you last saw him? That's right, isn't it? A. Yes, that is right. Q. Apart from what you've said here you rely - I withdraw that. You rely on face generally, right, although in the photo it's a thinner face, have I got that right? A. Yes, you do. Q. You rely upon a denim - a blue denim jacket, that's right, isn't it? A. Yes. Q. And stance? A. Yes. Q. Is that it? A. Yes." 16 In Smith Gleeson CJ, Gaudron, Gummow and Hayne JJ considered the identifying evidence of the police officers was irrelevant but their Honours went on to remark that the decision in Smith did not mean that it would never be relevant for a witness to give evidence that the witness recognised who was depicted in a photograph. Their Honours said (at paras 13-15): "[13] This is not to say that it will never be relevant for a witness to give evidence that the witness recognises who is depicted in a photograph. The obvious case in which that will be relevant is where the witness deposes to having identified someone from a photograph, or collection of photographs, shown to the witness and the identity of the person depicted is proved in some other way (Alexander v The Queen (1981) 145 CLR 395). Difficulties may arise, however, when the photograph which is used for identification and is tendered in evidence is, as was the case here, a photograph taken of an incident which is the subject matter of the proceeding. Even in such a case, a witness's evidence of recognition of the person depicted may be relevant. [14] Sometimes the facts in issue will extend beyond the narrow question whether the accused is the person depicted in the photograph. In R v Goodall [1982] VR 33. the questions included whether the accused owned a jacket of the kind that the offender depicted in security photographs of a robbery was shown to be wearing. A jacket, which was tendered in evidence, had been found with other incriminating items. Two police officers gave evidence that they had seen the accused wearing this kind of jacket before the robbery. They gave further evidence that the man who was depicted in the security photograph was the accused, and that he was wearing a jacket of the kind they had seen him wearing before the robbery. The evidence was, therefore, relevant to link the accused to the jacket. It went beyond the bare assertion of recognition of the person on trial as the person shown in the photograph. [15] In other cases, the evidence of identification will be relevant because it goes to an issue about the presence or absence of some identifying feature other than one apparent from observing the accused on trial and the photograph which is said to depict the accused. Thus, if it is suggested that the appearance of the accused, at trial, differs in some significant way from the accused's appearance at the time of the offence, evidence from someone who knew how the accused looked at the time of the offence, that the picture depicted the accused as he or she appeared at that time, would not be irrelevant (R v Palmer [1981] 1 NSWLR 209). Or if it is suggested that there is some distinctive feature revealed by the photographs (as, for example, a manner of walking) which would not be apparent to the jury in court, evidence both of that fact and the witness's conclusion of identity would not be irrelevant (cf R v Morrison (unreported; Court of Criminal Appeal (NSW); 30 November 1995)). Similarly, if, as was the case in R v Tipene (Unreported; Court of Appeal (NZ); 30 May 2001), 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." 17 There was no suggestion that the police officers in Smith, by reason of their previous observations of the appellant, enjoyed some particular advantage in recognising the person in the photographs, and, indeed, when the appeal was argued in the High Court, it was acknowledged that by the time the trial was over the jury had had a greater opportunity of observing the appellant than either of the police officers before trial. (See the joint judgment in Smith at pp 654-655, para 9.) One of those officers had knowledge of the appellant from three brief conversations of less than five minutes over a three month period and then from seeing him "in passing" on some three other occasions. The other officer had spoken to the appellant five or six times and had arrested him a couple of times. He had spent two to three hours with the appellant on each of the arrest occasions (see the judgment of Kirby J at pp 660-661, paras 28, 29). 18 Unlike the police officers in Smith, Ms Wood had grown up with her brother and had an ongoing association with him. The witness had the advantage, not shared by the jury, of the long time opportunity, which she asserted, of observing her brother and of noting his characteristics, his stature, his stance, his facial features, and the manner in which he wore his jacket, which the witness claimed was so familiar to her. Hence the evidence which Ms Wood was able to give and did give satisfied the requirement of relevance. 19 Both the Crown and the appellant have taken the opportunity of putting before the Court supplementary written submissions since the hearing of the appeal. I do not propose to undertake an extensive review of those submissions in this judgment but I have, of course, considered what has been written. 20 In those submissions, the Court has been referred to cases in which the admissibility of the evidence of police officers of the type given in Smith has been considered. Examples of cases in which evidence was admitted are Rix v DPP (unreported, NSWCCA, 29 June 1989); and R v Goodall (1982) VR 33. In R v Palmer (1981) 1 NSWLR 209 evidence was given by neighbours who saw photographs taken by bank security cameras. Those photographs were displayed in the bank. The neighbours gave evidence that the man depicted was the appellant. Reg v Griffith (1995) 79 A Crim R 725 is an example of a case in which it was determined on appeal that evidence was wrongly admitted. The evidence in that case was evidence of police officers to the effect that photos taken by a security camera were photos of the appellant, although the face was distorted by the presence of a stocking over it. 21 I do not consider it would be useful to review in detail these and other decisions since the relevant considerations concerning admissibility were comprehensively considered in Smith (supra). 22 Whilst I consider that the evidence of Ms Wood was relevant, it does not necessarily follow that it was properly admissible. It is necessary to determine the character of the evidence: was it evidence of fact or was it opinion evidence? If it falls into the latter category, then s 76 rendered it inadmissible unless it came within one of the specific exceptions to the opinion rule. 23 The Crown has submitted that the evidence of Ms Wood was evidence of fact. Mr Corish has submitted to the contrary. The Crown has further submitted that if the evidence is to be regarded as opinion evidence, then it became admissible pursuant to s 79 of the Evidence Act in any event. Once again, Mr Corish has submitted to the contrary. 24 In their written submissions counsel have referred to cases in which evidence of the type here being considered has been categorised. In Smith the Court of Criminal Appeal categorised the evidence of the police officers as evidence of fact: (1998) 47 NSWLR 419 at 424 [24]. Kirby J took a different view in the High Court. The neighbours' evidence in Palmer appears to have been regarded by Street CJ and Lusher J as evidence of fact, but Glass JA regarded it as opinion evidence. The police evidence in Rix and in Goodall was admitted however it was categorised. 25 Mr Corish has referred to Griffiths (supra) where the Queensland Court of Appeal treated the evidence as opinion evidence. Reference was also made to a decision of Vincent J in R v Smith (1987) VR 907, but this related to a ruling on the admissibility of the evidence of a psychologist as to the possible unreliability of identification evidence. Mr Corish also cited Canadian authorities: Reg v Browne & Angus (1951) 99 CCC 141 (a decision of the British Colombia Court of Appeal); and Reg v Leaney & Rawlinson (1988) 38 CCC (3d) 263 (a decision of the Alberta Court of Appeal); and Reg v Leaney & Rawlinson (1989) 2 RCS 393 (a decision of the Supreme Court of Canada). Browne concerned evidence of identification in the dock; in Leaney, the Alberta Court of Appeal classified identification as "non expert opinion evidence" (per Harradence JA at 277). His Honour said (also at 277) that "where a witness is so familiar with the accused that he can identify idiosyncrasies of physical appearance or movement, not apparent to the trier of fact in the courtroom, that witness should be able to give his opinion ."

In the judgment of the Supreme Court in Leaney , the court considered that the evidence of a police officer testifying as to the identity of an accused person shown on a video tape was admissible when that police officer had known the accused person since childhood. 26 I do not propose to review further the authorities to which Mr Corish referred, but rather to return to Smith in which in the Court of Criminal Appeal (1998) 47 NSWLR 419 at 424-424 Sheller JA considered in detail the nature of recognition evidence, and in which in the High Court ((2001) 206 CLR 650 at 667-669) Kirby J addressed this same issue. 27 In the Court of Criminal Appeal (at paras 16-22), Sheller JA said: "16 To characterise as evidence of an opinion a witness's testimony that he recognises a person shown in a photograph as a person he knows presents an obvious problem. Logically, what is the difference between that evidence and that witness's evidence that he recognises somebody he met in the street as a person he knows? If a witness is shown a studio photograph of his spouse, who lives with the witness, and gives evidence that the person shown in the photograph is the witness's spouse, commonsense and common use of language would not treat that as an expression or evidence of opinion but as direct evidence of the fact: "that is a photograph of my wife". Compare R v Palmer (1981) 1 NSWLR 209 at 213. 17 In the context of the rule, which has traditionally excluded opinion evidence, any useful definition of 'opinion' has proved difficult. In R W Miller & Co Pty Limited v Krupp (Australia) Pty Limited (1991) 34 NSWLR 129 at 130 Giles J, as his Honour then was, observed that the distinction between fact and opinion, and what is opinion evidence, are not particularly clear, 'but for present purposes I think opinion evidence can be described as evidence of a conclusion, usually judgmental or debatable, reasoned from facts.' Typically a person of a particular skill or training, such as a medical practitioner, will give evidence based on history, symptoms and examination about the health of a patient. That is understood as opinion evidence based on factual material or on assumptions consisting of history, symptoms and the results of examination. In Allstate Life Insurance Co Limited v Australian and New Zealand Banking Group Limited (No 5) (1996) 64 FCR 73 at 75 Lindgren J, referring to the opinion rule in the Evidence Act of the Commonwealth, said: 'The expression "opinion" is not defined in the Act. In the context of the general law of evidence, "opinion" has been defined as "an inference from observed and communicable data": J D Chadbourn (Ed), Wigmore on Evidence, (1978), vol 7, para 1917; and see Cross on Evidence (5th Australian Edition, 1996), p 782 para 29010; Australian Law Reform Commission, Interim Report on Evidence (ALRC 26, 1985), vol 2, pp 168-169 para 96.' 18 In the edition of Wigmore referred to at para 1919 the author makes the point that no distinction between 'opinion' testimony and 'fact' testimony is scientifically possible. '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 analyse 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.' 19 If a distinction must be made it can only be one of degree, calling for a decision as to whether, on a continuum which is unmarked and for which there is no exact measure, particular testimony has passed the point where it has become evidence of an opinion. In a passage which Wigmore quoted as 'the most careful attempt to justify the distinction', Sir George Cornewall Lewis in Influence of Authority in Matters of Opinion 1 (1849) gave the following guide: 'It is true that even the simplest sensations involve some judgment; when a witness reports that he saw an object of a certain shape and size or at a certain distance, he describes something more than a mere impression on his sense of sight, and his statement implies a theory and explanation of a bare phenomenon. When, however, the judgment is of so simple a kind as to become wholly unconscious, and the interpretation of the appearances as a matter of general agreement, the object of sensation may, for our present purpose, be considered a fact.' 20 In Cross, 5th Australian edition, at 781 and following the learned editor emphasises the attractive but deceptive simplicity of the proposition that witnesses must state facts not opinions. At para 29015 it is said: 'Although the distinction between facts and inference is clear enough, the evidence given by a witness is neither fact nor inference. What the witness utters in each case is a statement about a fact or series of facts. These facts have been processed through the witness' mind via perception, classification, recollection and utterance. ……it will be recognised that statements concerning speed, or temperature, or the identity of persons, things and handwriting are indissolubly composed of fact and inference. The law makes allowance for these borderline cases by permitting witnesses to state their opinion with regard to matters not calling for special knowledge whenever it would be virtually impossible for them to separate their inferences from the facts on which those inferences are based.' 21 The question posed by s76 does not require a determination which starts by dividing evidence between evidence of opinion and evidence of fact. The question is whether particular evidence is evidence of an opinion within the meaning of the section. The appellant's submission is that the police officer giving evidence about the photograph was doing no more than infer identity from observed and communicable data. 22 It is not difficult to see that evidence about what a photograph shows may involve using a special knowledge to draw an inference from what can be seen in the photograph. But, to a witness who knows a person well enough to recognise that person on sight, there is no more inference involved in recognising that person as the person whose face is shown in a photograph than there is in recognising the same person when meeting that person in the street. The evidence may be mistaken in either case, for example, if the person recognised is an identical twin. But even so it remains direct evidence of the fact that the person shown in the photograph or met in the street is a particular person…" 28 Then, at [24]: "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." 29 In the above passages, and in particular at para 19, Sheller JA adverted to the difficulty of determining precisely when evidence passes the point of being evidence of fact and becomes evidence of opinion. In the High Court Kirby J said this (at para [54]): "[54] The respondent urged that a wide latitude should be accorded to the trial judge as to the applicable classification, given the blurred boundary between fact and opinion (Relying on McCormick on Evidence, 4th ed (1992), vol 1, p 43). I agree. I also accept the point made by Sheller JA that a statement identifying a person, clearly depicted in a studio photograph, as one's spouse (or partner), would normally be regarded as a statement of fact (R v Smith (1999) 47 NSWLR 419 at 422 [16])." 30 His Honour proceeded: "[55] However, even relatives can make mistakes of identification from photographs. The accuracy of such identification testimony may depend upon the quality of the photograph; the clarity of the lighting at the scene; whether there is a frontal, or sideways, or rear depiction of the features of the subject; the eyesight of the examiner; the length of time that the photograph is examined; external indicia of familiarity in the print; the degree of physiological or psychological arousal at the time of perception and so on (eg, Kapardis, Psychology and Law: A Critical Introduction (1997), pp 27, 36-39; Loftus and Doyle, Eyewitness Testimony: Civil and Criminal, 3rd ed (1997)). Most people have, at some stage in their lives, mistaken the identity of a person as a family member or someone they know well. How much greater is the chance of error in identification where it is done from a photograph and the photograph relied upon is not of a well-lit studio portrait of a close family member or friend (where testimony might properly be accorded the status of fact rather than opinion), but the somewhat imperfect representation in a bank security photograph of a scene where the subject of the photography is taking pains to disguise, or hide, his or her appearance. [56] The experience of the law, expressed with increasing conviction during the last two decades, is that very great risks of wrongful conviction and miscarriages of justice can attend identification (and recognition) evidence generally, and particularly where such evidence is based on photographs (Especially since the publication of the Devlin Report: Report to the Secretary of State for the Home Department of the Departmental Committee on Evidence of Identification in Criminal Cases (1976); R v Turnbull [1977] QB 224 at 228; R v Domican [No 3] (1990) 46 A Crim R 428 at 443-446; Domican v The Queen (1992) 173 CLR 555 at 560-564). In this sense, I see no difference in the dangers caused by evidence of identification from photographs of the offender in action, such as produced by bank surveillance, and identification from photographs of the accused and other suspects held by police. The risks, already large, may be enhanced by the natural desire of a person performing the act of identification to produce an affirmative outcome rather than to admit to incapacity and failure. The risks are still further increased where the person concerned has a relevant professional motivation (even if only subconsciously) to identify a person (Yarmey, The Psychology of Eyewitness Testimony (1979), p 154). One such motivation is that which a police officer quite naturally has to solve a serious crime. [57] Given all that is now known about the dangers of mistakes inherent in the process of identification (and recognition) (See Craig v The King (1933) 49 CLR 429 at 446; Davies and Cody v The King (1937) 57 CLR 170 at 181), it is unsurprising that identification evidence of the kind offered by the two police officers has normally been classified as opinion rather than factual evidence (R v Palmer [1981] 1 NSWLR 209; R v Smith (1983) 33 SASR 558 at 560; R v Smith [1987] VR 907; R v Griffith [1999] 2 Qd R 524). Although not dealing with the requirements of the Act, it is useful to look at two recent decisions, in which the Supreme Court of Canada (R v Leaney [1989] 2 SCR 393 at 403, per Lamer J; at 407, 409, per Wilson J; at 412-413, per McLachlin J (L'Heureux-Dube and Sopinka JJ concurring); see also R v Browne and Angus (1951) 99 CCC 141 at 147; 11 CR(Can) 297 at 302) and the Court of Appeal of New Zealand (R v Tipene (unreported; Court of Appeal (NZ); 30 May 2001) at 6-7, per Doogue J, see also R v Williams (1993) 11 CRNZ 34) have proceeded on the basis that police testimony of identification, based upon viewing video film and still photographs of a robbery, is opinion evidence. Each Court emphasised the desirability of excluding mere deductional evidence where the trier of fact (judge or jury) is in as good a position as the witness to reach a conclusion on matters of opinion about identification. Relevance, it should be observed, was assumed in both cases.

R v Marsh

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Judgment (12 paragraphs)

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Cases Cited (15)

Cited By (7)