Ground One
16 It was contended in support of ground one that, although the evidence of the identification was admissible, the application of s.137 of the Evidence Act 1995 required the rejection of it. It was submitted that when regard was had to the relevant provisions of the Evidence Act 1995, notably s.137 and s.165, and to those aspects of the identification evidence, which it was submitted were required to be taken into consideration in accordance with the decision of the High Court in Domican v. The Queen (1992) 173 CLR 555, it became incumbent on the trial judge to reject or withdraw the evidence. It was submitted that the trial judge erred in refusing the application that this evidence be withdrawn and did so because he failed to afford sufficient weight to what was asserted to be prejudicial aspects of the evidence. It was submitted he erred in considering that any prejudice was limited to the accused "being deprived of the opportunity of testing any initial description given by [the victim] to the police at the station against the observation which he [the victim] made on the night [of 7 June]". It was contended that he erred when considering whether such prejudice as there might have been was unfair by limiting his consideration of that matter to whether there was found to be positive conduct on the part of the prosecution contributing to or causing that prejudice.
17 It was submitted that the identification evidence was such when analysed and when regard was had to the various matters said to effect its reliability, as to have almost no probative force and a great deal of prejudicial impact, only one, albeit, an important aspect of which, was the denial of the opportunity to which I have already referred.
18 The danger of unfair prejudice, it was correctly submitted, is to be identified from the risk that the jury might misuse the evidence or attach to it a probative weight disproportionate to its probative value, notwithstanding such appropriate directions as the trial judge might give. It thus becomes necessary in considering whether the trial judge erred to have regard to the matters which it is submitted would undermine the complainant's positive identification and to have regard to the appropriateness of the directions to the jury. As I have already noted these are the matters to which grounds two and four respectively relate.
19 It was contended that the requirements of s.137 of the Evidence Act 1995, as elucidated by the decision of this court in Regina v. Blick [2000] NSWCCA 61, were that in the event of a trial judge finding there was a danger of unfair prejudice, it was not for the judge to exercise any discretion, as the judge was required to exclude the evidence unless finding that its probative value outweighed that danger. It was further submitted it was not open to the trial judge here to make that latter finding.
20 In his judgment, his Honour said:-
"The first question is whether the evidence should be rejected under s.137. If it is to be rejected under that section it would be because the accused has been deprived of the opportunity of testing any initial description given by Joseph Le to the police at the station on 3 May against the observation which he made on the night in question.
I am not satisfied that there is unfair prejudice to the accused arising out of a deficiency in police records which is not due to any positive act on the part of the prosecution. The probative value of the identification evidence is substantial and although no positive prejudice was identified, I have taken into account the prejudice that does arise because of the inability to test Joseph Le's evidence against his initial description, but find that that does not outweigh the probative value of the evidence and I do not intend to reject it on that ground."
21 Section 137 provides:-
"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."
22 In Blick (supra), at paras.13 and 19-20, it was held by Sheller, JA., with whom James and Dowd, JJ. agreed:-
"13. The comment has been made (see for example Ritchie's Supreme Court Practice, para.4235.2) that at common law, a trial judge in criminal proceedings had a discretion to exclude evidence if its probative value was outweighed by the risk of unfair prejudice that could follow from its admission. In contrast, s.137 made it mandatory to exclude such evidence.
…
19. When an application is made by a defendant pursuant to s.137 to exclude evidence, the first thing the judge must undertake is the balancing process of its probative value against the danger of unfair prejudice to the defendant. It is probably correct to say that the product of that process is a judgment of the sort which, in terms of appellate review, is analogous to the exercise of a judicial discretion: see the cases referred to by Priestley, JA. in Morgan v. McMahon (1985) 3 NSWLR 700 at 716 and following, particularly Lee Transport Co. Limited v. Watson (1940) 64 CLR 1 at 13 and Miller v. Jennings (1954) 92 CLR 190at 197. In the second of those cases, Dixon, CJ. and Kitto, J., in an appeal against damages awarded by the trial judge, said of the sum awarded that it was 'reached after a very full and careful examination of the facts of the case and it represents an informed judgment upon a matter which must largely be one of opinion and must be governed to a not inconsiderable degree by an estimate formed of the witnesses and in particular the appellant'. Translated to the task set by s.137, a trial judge's estimate of how the probative value should be weighed against the danger of unfair prejudice will be one of opinion based on a variety of circumstances, the evidence, the particulars of the case and the judge's own trial experience. In that sense, the result can be described as analogous to a discretionary judgment: see Heydon, 'A Guide to the Evidence Acts', 2nd ed., para.3.725.
20. Even so, and with due respect, there seems to me to be a risk of error if a judge proceeds on the basis that he or she is being asked to exercise a discretion about whether or not otherwise admissible evidence should be rejected because of unfair prejudice to the defendant. The correct approach is to perform the weighing exercise mandated. If the probative value of the evidence adduced by the prosecutor is outweighed by the danger of unfair prejudice to the defendant, there is no residual discretion. The evidence must be rejected."
23 It was contended on appeal that the reliability of the evidence was adversely affected by the following matters:-
"(a) the opportunity for the identification of the offenders at the time of the robbery on 30 May was extremely limited;
(b) the offenders were complete strangers to the victim;
(c) the victim's state of mind at the time of the offence was such that his observations may have been unreliable;
(d) the victim was a youth;
(e) the victim's eyesight was probably defective;
(f) there was no evidence of any contemporaneous description of the offenders given by the victim to anyone;
(g) there was no evidence of any descriptions of the offenders by any of the other persons present at the scene;
(h) the only descriptions given by the victim (at any time) of the offenders were of the most general kind and they were quite incapable of supporting an inference that the appellant was one of the offenders;
(i) those descriptions were given many days later and after he had seen the appellant;
(j) there was no physical or other evidence which supported the identification;
(k) the victim told the jury that there were three offenders but he initially told the police that there were four;
(l) the identification of the appellant was made eight days after the offence on 7 June;
(m) the identification of the appellant on 7 June was first made by the victim from a distance of about 20 metres in less than perfect lighting conditions at dusk from across the street;
(n) the evidence of the circumstances of that identification was equivocal as to precisely when it was made.
(o) whenever that identification was made it was made when the state of mind of the victim was one of fear;
(p) the evidence was that the victim told his father and may have told his mother that when he first identified the offender on 7 June, the offender was in a group of three males all of whom were involved in the robbery;
(q) that identification of the group as being responsible was apparently wrong as one of the group was Caucasian and the victim asserted that the offenders were all Asian;
(s) sic the identification was in part concluded by a process of eliminating two of the group of three;
(t) the evidence suggests that confirmation of the identification was made when the victim saw the appellant being spoken to by police officers;
(u) the identification was confirmed by his mother asking him to confirm that the appellant was the offender.
(v) from the time of the first identification outside the tutorial to the confirmation when the appellant was being spoken to by the police the victim had lost sight of the appellant and the group he was with on at least two occasions for some time;
(w) the closest the victim was to the appellant during the dusk of 7 June when he identified him was about 10 - 15 metres;
(x) the victim estimated the age of the offender as 16 or 17, whereas the appellant was aged 19."
24 It was for those reasons submitted the probative value was low and the prejudice so high it was incurable by the directions. Those considerations were advanced on this appeal. At trial, the following matters (which to my mind were not, in their totality, substantially different to the totality of those now referred to) were put forward as matters relevant to an appropriate direction under s.165 of the Evidence Act 1995:-
"(a) the accused was a stranger;
(b) the identification was made at dusk seven days later at a distance of 20 to 30 metres initially;
(c) the observation was for a short period of time, measured in seconds, followed by a momentary glance;
(d) only one witness is available to give evidence of identity;
(e) the opportunity to observe the perpetrator on the date of the robbery was short in time, although the observation took place at short range;
(f) the identification was not corroborated or able to be measured against an initial description;
(g) Joseph Le may have been mistaken because initially he thought the three men outside the phone box in the vicinity of the place where he had left his tutorial on 7 June were the three men who robbed him; and
(h) his assertion there were three men or boys involved in the robbery is contradicted by the evidence of Senior Constable Bird, who later recalls four being mentioned as the number involved.
It is conceded that the requirements of s.114 of the Evidence Act 1995 are complied with and that the visual identification evidence is not excluded by that section because in the ERISP the accused declined to participate in the line-up and the provisions of s.114(2)(c) are met."
25 These matters referred to at trial and those referred to here were what were said at trial and here respectively to amount to frailties in the identification evidence.
26 The trial judge set out his reasons for the refusal in the judgment of 5 September 2001 in which he referred to the appropriate test as enunciated by Hunt, CJ. at CL. in Tugaga (supra at 196). In that judgment, at least, the trial judge identified and considered the general effect of the asserted frailties of the evidence.
27 His Honour did not accept that the lack of the opportunity to test the description or any deficiency of police records amounted to unfair prejudice or that the inability to test, so far as it occasioned prejudice, occasioned such prejudice as outweighed the high probative value of the evidence. That latter process undertaken by his Honour was predicated on his Honour's earlier concluding that he was not satisfied there was unfair prejudice. As will appear, his Honour was of the view that the asserted frailties could be dealt with by appropriate directions and gave directions in the summing up to that end. Thus, his Honour concluded that the evidence should be left to the jury.
28 Although his Honour did not express his approach to the application of s.137 to the prejudice he detected in accordance with the requirements of the section (see Blick (supra)), his Honour's, refusing to reject the evidence on the basis of his finding that the prejudice he detected did not outweigh the probative value, does not display any material error, since his Honour did not find any unfair prejudice and it is with unfair prejudice that s.137 is concerned. I therefore do not consider he fell into any error of substance. Indeed, having regard to the asserted frailties, for myself, I would not conclude that it was incumbent on his Honour to find any unfair prejudice nor would I conclude that any prejudice there might have been would not be outweighed by the probative value of the evidence, particularly having regard to the directions which were given on this topic to the jury.
29 On the question of appropriate directions, his Honour, in the judgment said:-
"The next question is whether the frailty or frailties are such as they cannot be cured by appropriate caution to the jury.
There are uncertainties surrounding Joseph Le's identification of the accused. He made a positive assertion to his father that the three boys who robbed him were in the plaza. That is inconsistent with the fact that two of the boys in the plaza were not boys who robbed him on 30 May because one was Caucasian and the other was excluded by Joseph Le during the course of the investigations at the police station.
The accused was not identified as a result of that elimination. He had already been identified by Joseph Le as the person who robbed him at the bus station.
There was an issue as to whether Joseph Le told his mother when she came to the motor car after his father had picked him up from a newsagency that the three boys who robbed him were in the plaza or one of the three boys who robbed him was in the plaza. Ultimately that would be a matter for the jury.
I have come to the conclusion that the evidence of identification made seven days after the events took place in the circumstances which I have outlined should not be withdrawn from the jury. The frailties are such that they can be covered by a direction in accordance with the authorities since Regina v. Domican and in accordance with s.116 and s.165 of the Evidence Act 1995."
30 His Honour gave the jury the following general directions:-
"The next matter in which I will give you a direction of law concerns identification evidence. And it is, in the context of this case ladies and gentlemen, a very important direction of law. Evidence that the accused has been identified by a witness as doing something must, whenever it is disputed by the accused, as it is in this case, be approached by you with special caution before you accept it as reliable. That caution is necessary even though you may be satisfied that the witness has been giving completely honest evidence when saying that he or she identified the accused. That is even if you are satisfied that Joseph Le has been giving completely honest evidence when saying that he identified the accused. These particular directions relate to the reliability of the identification evidence given, not to the honesty with which it was given. Special caution is necessary before accepting identification evidence because of the possibility that even completely honest witnesses may have been mistaken in their identification. I am not suggesting that the evidence of such a witness must be regarded as unreliable. My task is no more than to draw your attention to the possibility that the evidence of such a witness may be unreliable and to explain why that is so, so as to enable you to exercise the special caution which is required in determining whether to accept that evidence as reliable and what weight is to be given to it. The common experience of the criminal courts over the years, both here in Australia and overseas, has demonstrated that identification evidence, however honestly given, may turn out to be unreliable. There have been some notorious cases over the yeas in which completely honest evidence of identification has been demonstrated to be wrong after innocent people have been convicted. The reliability of an identification of a person depends upon the circumstances in which the witness observed the person whom he or she has identified as the accused and any one of those circumstances may possibly lead to error. For example, how long was the period of observation? In what light was it made and from what distance was it made? Was there anything about the person observed which would have impressed itself upon the witness? Was there any special reason for remembering the person observed? How long afterwards was the witness asked about the person seen? How did the description given then, compare with the appearance of the accused? Each of those matters must be considered in every identification case and I will shortly be drawing your attention to some particular matters raised in this present case. It is perhaps easier to understand the possibility of error when evidence is given by someone who has not previously known the accused, but errors may also occur when the witness has previously known the accused. Mistakes have been known to be made by friends and even by relatives of a person who thought that it was their friend or relative whom they had seen. Because the witness who gives evidence of identification, that is Joseph Le in this case, honestly believes, you remember he said he was 100% certain, that his or her evidence is correct, that evidence will usually be quite impressive, even persuasive. The issue at this stage, however, is not whether the evidence is honest, the issue is whether the evidence is reliable. This warning of the need for special caution before accepting the evidence of identification is one which is given in every case in which such evidence is disputed by the accused. It is not given because of any particular view which I may have formed concerning the reliability of the identification evidence in the present case, the weight to be given to that evidence is a matter for your decision, not mine and I have nothing to do with that decision which you have to make. You should not interpret these directions as indicating any particular view which I may have formed, one way or the other. As I have said, you must approach all identification evidence with special caution. There are, however, a number of matters in this case to which I propose now to draw your attention, which are relevant to the reliability of the evidence of identification that has been given in this case, and my direction is that you are bound to consider those matters in determining whether you will accept that evidence as reliable. I do not say that you must regard all or any of them as necessarily undermining the reliability of the identification evidence and I repeat, that I do not express any opinion myself as to whether they should lead you to reject that evidence as unreliable. My purpose in referring to these matters is only to assist you in your task by pointing them out as warranting your attention and by directing you that you are bound to give them careful consideration."
31 He then particularly directed the jury on a number of matters including the absence of a recorded description on the night of the offence; the effects of the lapse of time on the reliability of the description given eight days later; the paucity of the description then given; the fact it was given after the identification occasion, the circumstances of that robbery and the identification occasion eight days later; the apparent mistake concerning the identity of at least one of the three boys seen at the Bankstown Mall as being one of the robbers. His Honour then said:-
"Ladies and gentlemen, the directions I have given you on the identification evidence have contained matters which I have brought to your attention which you are bound to consider in deciding whether you will accept the identification evidence in this case as reliable. I remind you again of the warning I gave you of the need for special caution before accepting the evidence of identification and that evidence that the accused has been identified by a witness as doing something must, whenever it is disputed by the accused, be approached by you with special caution before you accept it as reliable."
32 When directing the jury on the onus and standard of proof, his Honour said:-
"You heard me refer to, in my opening remarks and you have heard both counsel refer you to, the onus or standard of proof which the Crown bears in criminal proceedings such as this. This is a criminal trial and although it has taken a short period of time, it is of a most serious nature and the burden of proof of the guilt of the accused is placed firmly upon the Crown. That onus remains upon the Crown in relation to every issue in this case. This does not mean that the Crown has to prove the truth of each assertion of each crown witness, what the Crown must prove beyond reasonable doubt is each ingredient in the charge. I will come to those ingredients in the charge a little later ladies and gentlemen and I will have distributed to you, some written material which will contain an outline and a definition of those elements or ingredients of the charge. There is no onus of proof on the accused at all. It is not for the accused to establish his innocence but for the Crown to prove his guilty and prove it beyond reasonable doubt. The crown must satisfy you of that guilt beyond reasonable doubt. It is a fundamentally important part of our system of justice that people tried in these courts are presumed to be innocent of the crime or crimes alleged against them until a jury of their fellow citizens has been satisfied by the Crown beyond reasonable doubt, that they are guilty of those crimes. The accused is entitled to the benefit of any reasonable doubt in your mind. It is vitally important that you clearly understand that the accused must be acquitted if his guilt has not been proved to your satisfaction beyond reasonable doubt. You do not have to be satisfied that the accused is innocent before you should acquit him. If you are unable to decide where the truth lies, even though you feel he may be guilty, if you have a reasonable doubt about it you must find him not guilty. I should warn you that suspicion is not a substitute for proof beyond reasonable doubt. Suspicion must play no part in your function as judges of the facts, not even the gravest suspicion will suffice as proof beyond reasonable doubt.
You heard Mr. Marshall say, when he opened the crown case, and you heard him say again in his closing address to you and you also heard Mr. Hancock say that this is a case that there is one witness who is essential to the proof of the Crown case and that witness is Joseph Le. You should therefore examine and scrutinise his evidence with great care before you decide that a verdict of guilty should be brought in, if at all. And you should only find the accused guilty if you are satisfied beyond reasonable doubt of the truth of the evidence of Joseph Le. Now the fact that I have given you that warning does not mean that I have formed any view as to the honesty or reliability of Joseph Le as a witness. It is a warning that would be given in any case where the Crown case depended on the evidence of one witness."
33 Neither, when considered on this ground nor when considered on ground two, do I see the submission that the further matters that it was submitted should have been put on appeal were necessary. Indeed, I regard his Honour's direction as both legally appropriate and factually compendious
34 Having regard to all of the matters considered by his Honour, and the matters covered by the directions, I see no error in his Honour failing to withdraw the evidence from the jury's consideration. The evidence was highly probative and, as will be seen, the direction were entirely adequate. Ground one must be rejected.