Solicitors:
Crown: S Kavanagh
Prisoners: S O'Connor
File Number(s): SC 2005/191; 2005/189; 2005/205; 2005/424
[2]
Judgment
HIS HONOUR: These reasons relate to a ruling I made on 20 April last (Transcript p 767) that certain evidence from 2 police officers, Senior Constables Young and Purcell was admissible. The evidence was of observations each officer had made of the Accused and also to the effect that, on viewing images recorded by means of 2 CCTV cameras located at the scene of the murder with which the Accused were charged, the officers could identify each of the Accused as one of the persons depicted.
The evidence was objected to. With his usual clarity Mr Button, appearing for Duong Nguyen, identified the grounds of objection as:-
(i) That the evidence is irrelevant and thus inadmissible pursuant to section 55 of the Evidence Act;
(ii) It is not opinion evidence;
(iii) If it is opinion evidence, it is neither admissible lay opinion evidence, or admissible expert opinion evidence; and
(iv) If the evidence is otherwise admissible, it should be rejected under section 137 of the Evidence Act.
Other counsel objected on similar grounds, albeit drawing attention to aspects of the evidence particularly relevant to their clients.
Mr Button conceded that not all objections applied to all aspects of the evidence on which the Crown sought to rely. It was made clear that the evidence that was the principal subject of objection was the evidence to the effect that the persons depicted on the CCTV footage, and the still photographs produced from it, were the Accused. The point was also made that if that evidence was admitted, it would logically be accompanied by evidence of prior observations by the police officers of the Accused and this would be prejudicial. Mr Button made it clear that he did not suggest evidence wherein the police officers described methods of movement or usual clothing of his client was irrelevant, although maintaining his claim of prejudice.
On 12 April last I delivered reasons which cover in part similar issues but dealing with the evidence of a witness Amee Duong whose acquaintanceship with the Accused, at least on her evidence, was significantly different from that of the officers. As I said in those reasons:-
"The question arose against a background of a Crown case that 4 persons had entered a billiard hall, and walked through it. One, possibly two had moved into a courtyard at the back where a party was in progress. There, one of the 4 had fired 3 or 4 shots, fatally injuring Linda Hunyh and wounding another person, Hien Duc Phan. The passage of 4 persons towards the back of the billiard hall and the return passage of some of them had been captured on 2 CCTV cameras mounted on the ceiling inside the hall itself. One, probably the major, issue in the case is whether any of the Accused were among the 4 persons whose images were so captured.
A tape recording the images captured by those cameras is in evidence. As is commonly the case, the CCTV images are much less clear than studio portraits. The quality of the images varies from one frame to another and also varies as between the 4 persons. From the point of view of identification many of the images are useless. The best is certainly no better than fair and that description would be regarded by many as an overstatement.
In the days immediately prior to 20 April, a voir dire enquiry was held during the course of which the officers' statements were tendered, they gave additional oral evidence in chief and were cross-examined. Other evidence was also admitted and I had regard to some of the evidence previously tendered in the trial. I also had regard to observations I had made of the Accused and of photographs in evidence and to which I shall later refer.
In his statement of 16 March 2004, Senior Constable Young said that he had been stationed at Cabramatta since 1995 and his duties had included beat policing and bike squad duties. Since 1996 he had met with Khanh Nguyen on well over 100 occasions and met with each of the other accused on at least 50 occasions. He had seen Khanh in the company of the others. On occasions he had spent in excess of half an hour in face-to-face contact with all four and described one particular occasion on 7 November 2003 when he had had conversation with all but ATCN.
Constable Young said that in the early morning of 7 January 2004, i.e. some few hours after the shooting, he had been recalled to duty and viewed the CCTV footage. The substance of his evidence was that on first viewing the footage he had identified the first man depicted as Duong or another man Anh and the second man as ATCN. He was unable to recognise the third man and observed the fourth to be similar to Khanh, relating some features of the fourth man seen to features he had previously observed Khanh to display.
Later that day Constable Young saw some still photos taken from the CCTV footage. He then positively identified the first man as Duong, comparing some of the first man's characteristics including his walk and carriage to that of Duong. Seeing a still photo of the second man confirmed his view that it was ATCN. The only feature referred to specifically was hair, length, colour and style.
On seeing the still photo of the third male Constable Young identified him as Minh Huynh. On seeing the still photo of the fourth man Constable Young identified him as Khanh Nguyen, again comparing some of the features of that man with Khanh.
In cross-examination by Button, Constable Young referred to Duong as having a noticeable style of walk which he described and which was different from Anh's. He said that this style is to be seen on the CCTV footage although he could not remember whether he had noticed it on his first viewing. He seemed to indicate that it was the whole aspect of the first person depicted that led him to think that person was, as one of 2 possibilities, Duong. However there was some apparent shadowing of the face that also raised the possibility it was Anh. Constable Young agreed with the proposition that looking at the still photos did not indicated anything about the manner of movement of the first person depicted.
Asked to describe the attributes or characteristics of Duong that led him to believe that the first person depicted was Duong, all Constable Young said was:-
"…It's just a strange walk. He's got a very narrow face and very prominent cheek bones which the combination of the two are unique, the two together, it's not just that it's a skeletal, it's also narrow. They're the characteristics that at the moment that are unique but then I've also expressed other characteristics, as you say build the picture that is Duong." (sic)
During cross-examination by Young, Constable Young was asked to describe what was distinctive about ATCN's face. He said:-
"(A)part from the hair, he's got very angled eyebrows. Most people they come across like that (witness indicated). His seem to arch up and they add a real angle to his face. Quite a boy-ish face and quite, it's quite a round face, but the eyebrows can make it seem more angular."
Taken to one of the photographs in evidence, ti was suggested that the person depicted had thinner face than ATCN. The witness said that it was very hard for him because of a difference in hairstyle. He disagreed with a later suggestion that in a photograph the jaw seemed to be thrust forward and again that the face depicted was narrower than that of ATCN. This and later cross-examination and the witness' answers demonstrated the difficulty that defining a facial appearance by factual descriptions presents.
Constable Young also referred to ATCN having a distinctive walk, often with his hands behind his back. The second man depicted on the CCTV footage walked that way.
Mr Terracini cross-examined about the height of persons relative to the billiard tables and on the topic of the lack of detail to be detected in the CCTV footage of the third man, suggesting that that lack of detail made it impossible for his client and perhaps any person to be identified from it.
In cross-examination by Mr Simpson on behalf of Khanh Nguyen, Constable Young again referred to an mannerism of apparent excitement that Khanh tended to exhibit and said that this was a factor he had observed on the CCTV footage. He referred also to hair, a skeletal bony face, a slim build and height but said that those were not the only things. He said that it was not easy to describe some of the attributes and that his identification was because he knew all of the Accused so well.
Senior Constable Purcell described having been involved in very extensive police duties in and around the streets of Cabramatta from about 1998 until 2004. He said that during most of this time he had seen Khanh on a near weekly basis including on at least 2 occasions between 30 December 2003 and 8 January 2004, speaking to him often at least to some extent. He said he had known Duong for 2½ to 3 years, seeing him many times. Constable Young said that he rarely spoke to Duong although he recounted some occasions when he had. He described some characteristics, including clothing and manner of walking.
He said that he knew ATCN for about 12 months and for the last few months seeing him on many occasions. He described his hair and a somewhat distinctive manner of walking. He said that he had known Huynh for at least 2 years.
Senior Constable Purcell gave evidence that on watching the CCTV on the morning of 7 January 2004, he immediately and with absolute certainty recognised Duong and the second person as ATCN. He did not recognise men 3 and 4 as they walked into the billiard hall and headed towards the back. When two of the men were exiting he believed one of them to be Khanh.
He re-watched the CCTV, pausing on man number 4 and realised this was definitely Khanh. Some time later he saw still photographs and on seeing one showing man number 3 recognised him without doubt as Huynh. His
In support of the submission that the identification evidence was irrelevant, much reliance was placed on the decision of the High Court in Smith v R (2001) 206 CLR 650. Mr Button submitted that the majority of the High Court in that case had laid down a broad test of inadmissibility of identification evidence, although recognising some exceptions. I disagree.
The gravamen of the majority's view that the identification evidence in that case was inadmissible lay in the following passage at [10 - 11]:-
"I an assertion, in evidence, by a witness that he not recognises, or has previously recognised, the person who is depicted in those photographs relevant evidence? That is, in the language of s55 of the Evidence Act, could that evidence, if accepted, rationally affect the assessment by the jury of the probability that it is the person standing trial who is depicted in the photographs?
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 provided 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 nether 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." (emphasis added)
That it was this identity of material which underlay the Court's decision in that case is made further apparent when the majority turned to some of the circumstances where, subject to considerations other than relevance, evidence was admissible. Having identified some such situations, the judges continued, at [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, that the picture depicted the accused as he or she appeared at that time would not be irrelevant. 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." (emphasis in the original)
The evidence of Senior Constables Young and Purcell made it clear that there were differences between the appearance of each of the Accused at about the time of the offence with which they have been charged and their appearance at the time of trial, differences which in the circumstances of the material available to the jury I regarded as significant. It is unnecessary for the purposes of these reasons that I detail those differences. Most are referred to in the transcript at pages 623-6 (Constable Purcell) and at pages 663-6 (Constable Young).
Prior to the officers giving evidence I myself had noticed differences between the appearance of each of the accused in the dock and their appearance as depicted in photographs tendered in evidence in the trial, some of which photographs had been taken at about the time of their arrest and some earlier. After the conclusion of evidence but prior to submissions on the voir dire I indicated to counsel in a document which became MFI 14 and subject to an order it be kept in the Court file my impressions in this regard. No counsel sought to argue against the existence of the differences reflected in the document and which in part at least accorded with the evidence given by the police officers. As a matter of convenience, I attach a copy of MFI 14 (531 KB, pdf) to these reasons.
Thus the circumstances here are significantly different from those the subject of remark in Smith v R. In the case of all Accused, the constables' assertions of identity are founded on material appreciably different from that available to the jury. It was thus not irrelevant on the basis evidence in Smith v R was held to be. Once that ground is put aside, it is clear that the constables' evidence is relevant.
[3]
Opinion Evidence
While some of the evidence of Constables Purcell and Young as to the appearance of the Accused was evidence of fact, e.g. their description of the length of hair, bone structure of the face, and manner of walking, there is no doubt that some of their evidence, and that the subject of these reasons, is properly characterised as opinion evidence. I include in this category the officer's evidence to the effect that the persons depicted on the CCTV recording and the still photographs taken from that footage are the Accused. In my earlier reasons dealing with similar identification evidence from Ms Duong I set out, so far as is presently relevant, my understanding of the operation of s78 and remarked on a number of decisions or earlier judicial observations concerning ss78 and 79 of the Evidence Act and it is unnecessary to repeat much of what I there said.
In the case of each of Constables Young and Purcell also, I am satisfied that his evidence that a person depicted in the CCTV footage (and still) is a particular Accused is clearly based on what he has seen or perceived about, firstly, the real life appearance of that Accused and, secondly, what is depicted in the recorded footage. As I said previously, "In the context of s78, each of these items - the word 'matters' most naturally springs to mind but I wish to avoid prejudgment or the appearance of it - may fairly be regarded as a 'matter' or 'event', most appropriately the former." Again in the case of the evidence of the each of the 2 constables, "the difficulties of describing people, particularly their facial features, in a way which amounts to anything remotely approaching a definitive description, means that evidence of (his) opinion is necessary to obtain an adequate account or understanding of (his) perception of the identity of the persons depicted on the CCTV footage". The same remarks will often apply in the case of a walk. It is one thing to say that someone tends to roll from side to side. It is another to describe that tendency with sufficient precision to identify one person having that mannerism from others sharing it. Thus I regard the constable's opinion evidence as admissible within the terms of s78.
Although the degree of acquaintanceship with the Accused varied, I am satisfied that each of the officers has specialised knowledge concerning the appearance or identity of all 4 Accused, based on fairly extensive experience of them and that his evidence that the persons depicted on the CCTV footage (or stills) are the Accused is evidence of opinions based substantially on that knowledge and that the evidence of each comes within s79 also.
[4]
Prejudice
The basis of the claim that the evidence should be excluded on grounds of unfair prejudice lies in ss135 and 137 of the Evidence Act which, so far as is presently relevant, provide:
135. The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party, or
(b) …
137. In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
There were a number of facets of the arguments under these provisions. On the topic of probative value, it was submitted:-
(i) There was a plethora of evidence as to how the Accused looked in January 2004;
(ii) The constables could not adequately explain the bases for their asserted identifications.
(iii) There were other weaknesses in the evidence. For example the officers were unable to identify one or more of the Accused from the CCTV footage, much of the identification was dependant on the still photographs derived there from and little or none in reliance on movement; and
(iv) Constable Purcell could not identify the still photographs from which he had made his identification of Minh Hunyh.
There are a number of answers to these submissions. Firstly, while there is certainly a not insignificant amount of evidence as to how the Accused looked in January 2004, it is not so much, so indisputable, or of such a nature as to make further evidence on the topic of identification a waste of time. Secondly, the constables' evidence goes appreciably further than mere photographs or description as to how the Accused then looked. Thirdly, for the purposes of ss135 and 137 the probative value of the evidence of each of the constables should be assessed on the basis that it is accepted - see R v Shamouil [2006] NSWCCA 112 at [47] et seq. The criticisms of the quality of the evidence, while of possible weight on the question of whether the evidence should be accepted, do not go to the issue of its admissibility. Fourthly, even if they did and the weight of the evidence were relevant on the issue of its admissibility, taken in its totality I would regard the evidence of each constable as of substantial weight and so in respect of each Accused. In case it is considered relevant - although I do not think it is - I should say that I found both of them impressive and credible witnesses.
In connection with the statement commencing "fourthly", it is relevant to bear in mind that the evidence goes directly to a vital part of the case. Furthermore, the principal other evidence on the topic was from a witness, Ms Duong, who was subject to a sustained and not entirely unsuccessful attack on her credibility. In saying that, I do not ignore the fact that the attack by counsel for ATCN was more limited. However, that fact does not detract from the fact that the Crown still carried the onus of proving ATCN's involvement.
I turn to the submission that the evidence was unfairly prejudicial. It was submitted that the evidence of the officers as to their having made extensive observation of, and contact with, the accused would lead to speculation by the jury as to the cause of this. I may add that it might also be inferred from the extent of the police observation of each Accused that he had no regular employment. It was also submitted that any attempt to cross-examine the officers as to the extent of their observations of the Accused was likely to compound the prejudice.
In this connection it is appropriate to note that some few years ago Cabramatta, where most, if not all, of the observation and contact of which the officers spoke occurred, received a deal of press publicity to the effect that street dealing in illegal drugs was rife there. Given the suburb's reputation, one would expect that the police would make efforts to know whoever was to be seen around and while, no doubt the matters just referred to might well be cause for suspicion on the part of the police and the jury, they also go to explain the police officers' interest in the Accused without that interest being indicative of the Accused actually offending.
I have no difficulty in accepting the proposition that the jury would be likely to infer that the police at least recognised the possibility that the Accused may have been involved in some form of illegal activity. However there is no evidence that would justify any conclusion that the accused were actually offending in any way and it would be sheer speculation to conclude that they had. Indeed, one may perhaps add that the frequency with which the police officers saw the Accused is an indication that they were not offending often enough or badly enough to be caught, arrested and goaled.
But even if the conclusion was drawn that the Accused were indulging in some crime, there is no evidence as to what that was, certainly no evidence to suggest it involved violence or came remotely near the offences of murder or maliciously causing grievous bodily harm on which they have been arraigned. To my mind it is inconceivable that a jury would be influenced to convict a person of an offence as serious as murder on the basis that that the police suspected, or that the person might have, or perhaps had, indulged in either some unknown extent of drug dealing or other criminal activity. If that were a significant risk, we may as well throw out the jury system.
The second ground upon which it was urged that the evidence was unfairly prejudicial was inspired by or reflected the concluding words in paragraph [11] from Smith v R. Mr Button submitted:-
"There will be a profound tendency for the jury to be deflected from its task of making its own analysis of all the evidence including the CCTV and saying well, two authority figures (the police officers) say that."
I certainly accept that the admission of the officers' evidence raises a risk of the nature of that to which Mr Button referred although I doubt whether in the present context much if anything is to be gained by referring to the police officers as "authority figures" and I would certainly reject the description "profound tendency". Furthermore, it does not seem to me that there is any particular risk or likelihood that the jury will not carry out its task of considering all of the evidence in the trial and of whether the CCTV images are of a quality such as to admit of identification of the Accused.
Another argument relied on depended on the fact that the police officers' first identification of the Accused from the CCTV footage or the still photographs taken from it had not been recorded on video or otherwise as purported identifications often are. It was submitted that this reduced the weight that could be afforded to the evidence and hampered the Accused in making any challenge to it. All of these propositions may be accepted although it should also be added that had the course the absence of which is the subject of complaint been adopted, the Accused might well have been in a significantly weaker position to challenge the evidence than they in fact were. An illustration of this fact is the recorded apparent spontaneity with which Amee Duong identified the Accused when seeing the CCTV footage.
At the end of the day, a judgment has to be exercised as to the respective weight to be afforded to the probative value of the evidence and the danger of unfair prejudice. The conclusion at which I arrived was that, even if the danger of unfair prejudice is taken at the highest it can reasonably be put, the probative value of the evidence of Constables Young and Purcell heavily outweighed that danger rather than the reverse. Accordingly neither s135 nor s137 provided a reason for excluding the evidence.
[5]
Amendments
20 April 2020 - attached MFI 14.pdf
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Decision last updated: 20 April 2020