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[2012] NTSC 18
Supreme Court of the NT
2012-03-15
Kelly J
Original judgment source is linked above.
Plaintiff: Office of the Director of Public Prosecutions
R v Stamp [2012] NTSC 18
[1] Mr Stamp is charged (among other things) with stealing a Westpac card belonging to the victim and using it to steal $1,000.00 by withdrawing it from the victim's bank account through an ATM at Hibiscus Shopping Centre.
[2] The Crown has obtained CCTV footage of a tall Caucasian male of similar build to the accused using the ATM at Hibiscus Shopping Centre in what is known by other means to be the relevant transaction. It is not possible to see the face of the man in the CCTV footage because of a cap obscuring his face and the general quality of the footage.
[3] The Crown intends to tender the CCTV footage in evidence at the trial. The Defence does not object.
[4] In addition, the Crown proposes to call evidence from two people who know Mr Stamp, both of whom say they recognise the person in the CCTV footage as Mr Stamp from his general shape and build, and the way the man stands, walks, squats and generally holds himself.
[5] The first witness, Mr Westcott, is an accomplice to some of the crimes with which Mr Stamp has been charged. He has pleaded guilty to extorting money from the victim two days after the theft from the ATM and has implicated Mr Stamp as the principal offender in that extortion. (Essentially he says he was paid $50.00 by Mr Stamp to collect money from the victim on one occasion and was to be paid another $50.00 for collecting a second sum of money at the time he was arrested.)
[6] Mr Westcott gave evidence that as at October 2007, the date when the offences took place, he had known Mr Stamp for about a year. He saw him approximately once a week for the purpose of scoring drugs for him and for most of the time on most of these occasions Mr Stamp shared the drugs with Mr Westcott while they were seated in Mr Stamp's car. He did however have other opportunities to observe Mr Stamp walking, on his weekly drug excursions and other occasions such as walking into a friend's house. He described their relationship as "friends".
[7] Mr Westcott's evidence is that he was initially shown some CCTV footage by Constable Hodge that did not contain the piece of footage in question and he did not recognise anyone in that footage. At a later time he was shown a long piece of CCTV footage that did contain the images in question at which time he says he recognised the man in question as Mr Stamp.
[8] The second witness intended to be called by the Crown is Mr Derkson, a police officer.
[9] Mr Derkson's evidence is that he has known Mr Stamp for 8 to 10 years through their mutual connection with the Nightcliff Football Club. He has played a number of seasons of football on the same team as Mr Stamp during which time he had the opportunity to see him sit, stand, walk, run, squat and generally move about. He has also seen him on social occasions and through work on bail checks in connection with this matter.
[10] Mr Derkson says that some time in 2009 he was asked by Mr Hodge, the police officer in charge of this investigation, to come and watch some CCTV footage. He says that he recognised the tall Caucasian man shown at the ATM on that footage as Mr Stamp from the way the person walked, body shape and size, and even the head, just the person's general build and the way he squatted down. He agreed in cross examination on the voir dire that there was nothing peculiar or out of the ordinary about the way Mr Stamp walked. However, he insisted that he recognised the man on the footage as Mr Stamp. He agreed he could not be 100% certain but added, "Looking at the footage, to me that's Phil Stamp."
[11] At the time he was first asked to view the footage, Mr Derkson was aware that Mr Stamp had been charged with serious offences and the nature of those charges. However, he was not aware that the charges related in any way to Hibiscus Shopping Centre.
[12] In Smith v R[1] the High Court held that evidence from two police officers who had had previous dealings with the accused to the effect that the accused was the person depicted in a security camera photograph was inadmissible because it was irrelevant (or inadmissible opinion evidence). Essentially the police witnesses were in no better position than the jury to compare the face of the accused with the face in the photograph. The witnesses did not bring any added value to the exercise of identification.
[13] Gleeson CJ, Gaudron, Gummow and Hayne JJ said:
"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. 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. Similarly, if, as was the case in R v Tipene, 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."[2]
[14] This approach was followed by Martin CJ in R v Murdoch[3] where evidence of people who knew the accused to the effect that they recognised the person shown in certain CCTV footage as the accused was held to be admissible.
"[The witness] relied upon her recollection of the way the accused walked and held himself and of his body posture. These are features which, by necessity, cannot be made apparent to the jury."
[15] In my opinion this evidence is of the same nature. It is relevant evidence. People who know Mr Stamp have knowledge about how he walks, moves and holds himself that the jury do not have. The evidence is therefore admissible.
[16] Mr Cassells for the defence submits that I should in any case use my discretion to exclude the evidence on the ground that its prejudicial value outweighs any probative value it may have. I do not agree that it would be appropriate to exclude the evidence. It is relevant and therefore admissible and it may well turn out to be important evidence in the case. Any risk of prejudice to the accused can be overcome by appropriate warnings in the summing up about the dangers inherent in identification or recognition evidence.
[2] Smith v R [2001] HCA 50; 206 CLR 656-657 at [15].
[3] [2005] NTSC 28 at [75].
R
Stamp [2012] NTSC 18