R v Wayne Rodney SCHNEIDER

COUNSEL: Ms T Smith (Crown) Mr C Heliotis QC - Mr A Djemal (Defendant)

SOLICITORS: Director of Public Prosecutions Galloways - Defendant

1 HIS HONOUR: Identification witnesses pose a particular problem to the criminal justice system. The problem is, as has been recognised repeatedly, is that such witnesses are usually honest and the question at issue is whether they are mistaken. Identification witnesses are usually very persuasive and the authorities recognise that there is a risk that this honesty and ability to persuade the jury can lead to their evidence being treated as having greater weight than it truly deserves. The criminal justice system responds to these considerations in various ways two, in particular, concern directions that judges should give and restrictions on the admissibility of identification evidence. Identification evidence is singled out under the Evidence Act for very special treatment.

2 In this case the accused asks that I exclude evidence of what occurred when a Mr Usman was shown a number of photographs, including that of the accused. I will not repeat the basic facts of this case, they are to be found in a judgment I delivered before lunch R v Schneider No 1 [2010] NSWDC 6. Assuming that the reader has a familiarity with the facts to be found from that judgment I can say that Mr Usman was one of the doormen present on the night. He was involved in a fight and so did not see the person holding the pistol at the time it was discharged. He was able to say, however, and has told police that before he became involved in the fight he saw a man with a pistol in his hand. The evidence suggests there was only ever one pistol produced that evening and so it is the Crown case that the person who produced the pistol and was seen by Mr Usman with the pistol in his hand is the one who discharged it. The Crown case is that that man was the accused.

3 In his statement to police Mr Usman described that person as being; "about six foot five inches and had a muscular build. He was probably mid-twenties, he had tattoos on his left arm, they came down to the end of his bicep. The tattoos looked like flames and were red and yellow. He had a goatee which was brown. His hair was brown and short, but spiky with blond tips. He appeared to be Lebanese."

That statement was made on 12 February 2006. Sometime later, on 12 July 2006, Mr Usman was shown a number of photographs. They included a photograph of the accused. However, none of the photographs, including that of the accused, showed a goatee beard and with the possible exception of the accused none of them could be said to be clearly looking like someone of Lebanese origin.

4 As Mr Usman looked at the photographs he came to photograph number four. This was the photograph of the accused. Before he continued on to photograph five he said, "This one, not sure, keep going, come back to it later." The officer said that he could come back to it later. He then looked at the remaining photos and viewed them all again. He selected photograph number four and was asked, "What can you tell me about this person?" He answered, "I think on the night he had sort of blondie tips. He's about a little taller than me, pretty broad up the top with tattoos, I think tattoos on his upper arms."

He said, "He looks familiar. The guy who had his hand around his back and removed the gun. Looks like the guy who shot."

5 It is important to understand what Mr Usman is at this stage saying. He was, on initial viewing, not sure, but after viewing all of the photos twice he formed the conclusion that the photograph of the accused looked familiar and looked like the guy who shot.

6 What happened next is, it is said by Mr Heliotis on behalf of the accused, converted an opinion of Mr Usman that the accused looked similar to the shooter to an opinion that he was the man who did the shooting.

7 The police officer said, "Okay, you've just indicated that the guy that did the shooting". Mr Usman said, "Yeah, he is." He then made a statement to police in which he said: "I selected photograph 4. I saw this male pull a black pistol from the back of his pants. I didn't see him fire the pistol as I was fighting with another male in the group. I couldn't say who this male was pointing the pistol at."

8 So although Mr Usman's initial opinion was that the accused looked like the guy with the gun, he later positively identifies the accused as being that person.

9 I have some sympathy with what the police officer did. He was, I think, just trying to summarise what Mr Usman had said, but it seems to have had the effect of conveying to Mr Usman that he had selected the person the police believed had done the shooting. I am prepared to proceed on that basis. It is difficult otherwise to understand why Mr Usman's opinion would have changed in the manner I have indicated. I am prepared to find, quite readily, that the officer did not intend that to be the case, but that seems to have been what has happened.

10 Mr Usman will thus be presented to the jury as a person who has positively identified the accused and cross-examination of him will face the problems I identified at the beginning of this judgment. He is no longer a witness giving evidence of resemblance, he is a witness who will be giving evidence that he honestly and genuinely believes that he has selected a photograph of the person who shot Mr Brown.

11 Of course I can identify the problems that have come about and explain them to the jury. And so the Crown argues that all of this material can be put before the jury, nothing is hidden from them and they can themselves identify what has happened in this case.

12 Let me come back to this issue because I want to deal with another one and that concerns the array that was shown to Mr Usman. As I mentioned before, none of the photographs of the array, which included the accused, had a man with a goatee beard, none of them appeared to show anyone Lebanese with the possible exception of the accused and one other man. The police appear to have been attempting to act fairly to the accused by including within the array other people looking similar to him. But in circumstances where the accused said that the shooter had a goatee beard it would probably have been better for the police to have included photographs of men who did look like the accused but with a goatee beard. That is another matter relied on by Mr Heliotis for the accused. Having selected the photograph of the accused as being the photograph of the shooter and having formed in his mind, with the assistance of police, the accuracy of that act of identification, it does not really help that later on he was shown photographs of people with goatee beards in other arrays.

13 That would be a significant matter pointing to the risk of unfair prejudice when compared to the probative value of the evidence were it not for one thing: although police clearly had the view that there was a good chance that the accused was the one who had shot Mr Brown (because they had already received an act of identification from Ms Egan), they did not convey this to Mr Usman. He believed, according to his uncontradicted committal evidence, that he was being asked to select people that he saw that evening and there is nothing that I have seen to suggest that he was told or got the impression that in the first array he was to be shown, police were seeking to discover whether he could pick out the shooter. Whatever the problems with the array are, given that circumstance I can put them to one side.

14 I must therefore assess the probative value of the evidence given the possibility of a risk of unfair prejudice to the accused, that risk of unfair prejudice coming about because of the conversion of Mr Usman's opinion from one of resemblance to one of positive identification. In assessing the probative value of the evidence I must bear in mind that this is not a case where it is suggested that the accused does not look like the shooter. Most identification cases involve a response by the defence that the reason the accused has been charged is that a he or she did look like the offender. But this case goes further because as I understand it the defence will be arguing that a particular person did the shooting (he has been referred to "white shoes" throughout argument yesterday and today), and that apart from height he does look like the accused. Were Mr Usman's opinion to be therefore that the photograph of the accused depicted someone who looked like the shooter or looked familiar to him then that would be entirely consistent with the defence case and Mr Heliotis would probably not ask a single question of Mr Usman concerning that aspect of his evidence. But Mr Heliotis is now confronted with a witness whose opinion has changed because of the actions of the police.

15 Courts recognise that sometimes juries do act illogically and emotionally, and one area where this is likely to happen concerns identification evidence. Although logical arguments can be put to jurors, there remains the problem that jurors may give greater weight to identification evidence than it truly deserves. In this case that residual prejudicial effect has been bolstered by the circumstances I have described. I am satisfied that the probative nature of the evidence that the Crown seeks to lead is outweighed by the risk of unfair prejudice, that is that the jury will be persuaded emotionally or illogically, perhaps without them even realising, it to give Mr Usman's evidence greater weight than it truly deserves. The evidence objected to will be excluded.

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