Evidence Act 2001 (Tas), s 138.

Robinson v Woolworths Ltd [2005] NSWCCA 426; (2005) 64 NSWLR 612; Tasmania v Seabourne [2010] TASSC 35, applied.

Criminal Law - Evidence - Identification evidence - Admissibility - Generally - Identification from CCTV footage of accused by police officer familiar with accused - Evidence suggested accused of different appearance than in the footage and had a distinctive manner of walking - Evidence relevant and admissible.

Evidence Act 2001 (Tas), s 79.

Smith v R [2001] HCA 50; (2001) 206 CLR 650, considered.

R v Leung [1999] NSWCCA 287; (1999) 47 NSWLR 405, R v Drollett [2005] NSWCCA 356, applied.

Criminal Law - Evidence - Identification evidence - Modes of identification - Photographs - Generally - Identification from CCTV footage of accused by police officer familiar with accused - Evidence suggested accused of different appearance than in the footage and had a distinctive manner of walking - Evidence relevant and admissible.

Evidence Act 2001 (Tas), s 79.

Smith v R [2001] HCA 50; (2001) 206 CLR 650, considered.

R v Leung [1999] NSWCCA 287; (1999) 47 NSWLR 405, R v Drollett [2005] NSWCCA 356, applied.

State of Tasmania: Director of Public Prosecutions

Judgment Number: [2013] TASSC 61

1 The accused has pleaded not guilty to one count of armed robbery and one count of attempting to interfere with a witness. The particulars of the first count are that on 26 January 2013 the accused, whilst armed with a knife, robbed a Jason Davidson of a wallet containing cash and documents. The particulars of the second count are that on 16 June 2013, the accused approached Mr Davidson at the Magistrates Court where he was due to give evidence against the accused in preliminary proceedings, and said the words "Don't do it and I'll forget you exist. I nearly had already."

2 I am to determine a number of issues under s 361A of the Criminal Code before a jury is empanelled. Those issues are:

(a) whether the counts are properly joined, and if so, whether they should be severed;

(b) whether evidence of a police photoboard identification by the complainant of the accused on 22 March 2013 should be excluded under ss 137 or 138 of the Evidence Act 2001;

(c) whether evidence of the identification by a police officer of the accused from CCTV footage taken at around the time, and near to the location, of the robbery is admissible, and if so, whether it should be "excluded" under s 137.

3 Counsel were agreed that I could have regard to the Crown papers filed on 3 September 2013 along with supplemental proofs which have been filed. I heard evidence from Detective Senior Constable Lane and Sergeant McCulloch, being respectively the officers who conducted the photoboard procedure, and who identified the accused from the CCTV footage.

4 Counsel for the accused submits that the joinder of the two counts is an improper exercise under s 311(2) of the Criminal Code, in that they do not arise substantially out of the same facts or closely related facts, and are not, or do not form part of, a series of crimes of the same or similar character. Alternatively, relying on s 326(3) of the Code, it is argued that the accused would be prejudiced or embarrassed in his defence by reason of the two crimes being charged in the one indictment, and that a separate trial should be ordered.

5 It is well established that the necessary connection for the purposes of s 311(2) exists if the evidence in respect of one count is admissible in the trial of another: Tasmania v L [2013] TASSC 47 at [29] and the cases cited. Here, the Crown says that there is cross-admissibility.

6 Taking the second count first, evidence that the accused approached Mr Davidson and effectively threatened him not to give evidence against him is, I accept, evidence of an "admission" in the sense that it shows a consciousness of guilt: Adam v R [1999] NSWCCA 189; (1999) 106 A Crim R 510 at 523 [63]; R v Liddy [2002] SASC 19; (2002) 81 SASR 22 at 91 [243]. The accused, however, submits that if the evidence is admissible on that basis (about which there appears to be no real argument), then it should be excluded in relation to count 1 by virtue of s 137. This is on the basis that there is an unacceptable degree of risk that the jury will not consider alternative explanations for the accused's conduct, if satisfied that it happened.

7 In my view, the evidence relating to count 2 is admissible on count 1, and the exercise under s 137 provides no reason not to admit it. No doubt the jury would be instructed in the usual way about the use of consciousness of guilt evidence: Edwards v R [1993] HCA 63; (1993) 178 CLR 193. The usual directions include directions that the jury must be satisfied that the statement or conduct was done or made out of a realisation of guilt, and that it should be borne in mind that there may be reasons for the conduct other than a realisation of guilt. The standard directions adjusted to the circumstances of this case would be sufficient to counter any risk of unfair prejudice.

8 It is not strictly necessary to look at the admissibility of the evidence on count 1 in respect of the trial of count 2 in order to resolve the issue. I record, however, my acceptance of the submission made by the Crown that evidence implicating the accused in the armed robbery provides evidence of motive, making the evidence relevant in relation to count 2.

9 Counsel for the accused suggested that there would be difficulties in cross-examination were the counts tried together, but did not elaborate on how that might be. I am not readily able to see any real difficulties. Counsel did not identify any other prejudice or cause for embarrassment in the conduct of the defence. I refuse the application to sever the indictment.

10 The complainant was robbed in Macquarie Street near the GPO on 26 January 2013, that being of course, Australia Day. As part of the investigation, CCTV footage taken from different vantage points of what is known as the Elizabeth Street bus mall was obtained. This footage shows areas of Elizabeth Street between Collins and Macquarie Streets. One vantage point is of the main entrance to the GPO in Elizabeth Street. Another vantage point is directly over the entrance point to the Chemist Warehouse in Elizabeth Street looking towards Macquarie Street. That footage runs for a little over five minutes, and has an audio track. It shows a person at about 2.25pm, alleged to be the accused. He is wearing a white cap and a brown T-shirt with a distinctive pattern on the front. This person is not in view for the whole time, but he comes and goes. At one point it records him apparently having a conversation with a person out of camera shot. Some of the words used are to the effect of "Heath, are you interested in that that dog or not?".

11 On 30 January 2013, Mr Davidson identified to police a man he had seen in the Elizabeth Street mall earlier that day, and who he said was the person responsible for the robbery. That person was interviewed and denied being responsible. Apparently, he has been cleared of suspicion. When shown the CCTV footage, he identified the accused as a person shown in it. The man cannot presently be found. As I understand it, the Crown will not seek to lead evidence of his identification pursuant to s 65 of the Evidence Act, and he would not be called in any event.

12 On 1 February 2013 the CCTV footage was shown to Mr Davidson. He identified as his attacker, a person shown in the footage walking near to him first towards Macquarie Street at about 2.37pm, and then away from Macquarie Street towards Collins Street at about 2.40pm, after the robbery is said to have occurred.

13 At about this time, a number of police officers looked at the Chemist Warehouse CCTV footage. Sgt McCulloch was one of them. The accused was well-known to him, and Sgt McCulloch's evidence is that the person shown in the CCTV footage and engaged in the conversation is definitely the accused.

14 On 7 February 2013, police went to where the accused was staying. They took possession of, amongst other things, items of clothing. One item was a brown T-shirt with a distinctive pattern on the front. A jury may conclude that it is the same style of shirt is as that worn by the person shown in the CCTV. The accused was interviewed on 7 February. He agreed, although he said he could not be "a hundred percent", that he was in the bus mall on Australia Day 2013. He was asked about whether he knew someone named Heath, and whether he or his father had any dogs. In response to the question about his father, the following exchange:

"A Yeah me brother's got um, oh bingo, Heath Marshall wanted a dog and Barry's got two pups.

A Bingo! Right out in front of the AMP building it was.

1. That's the conversation you're after? Yeah, Heath Marshall, and my little brother's got two little pitty pups down there and he's been after a pup .... Right."

15 Later in the interview, the accused was shown a photograph taken from the Chemist Warehouse CCTV footage. He was asked if he recognised the person in the picture. He said "Well it looks very similar to me doesn't it? It looks like my top." He was asked whether he had clothing similar to that worn by the person in the photograph. In general terms, he agreed that he did but his attitude is perhaps best summed up by the response "I'm not saying it is me and I'm not disputing it's not me." Counsel for the accused submits that there is nothing in the interview which can be taken as a concession that the accused was in the bus mall at about 2.25pm. I infer, and it should be accepted in any event, that there will be a dispute about the identity of the person shown.

16 On 22 March 2013, Sen Const Lane prepared a photoboard consisting of 12 photographs of males, one of whom was the accused. She spoke to Mr Davidson at his home. I will return to this in greater detail, but Mr Davidson identified the photograph of the accused as the man who had robbed him.

17 The accused submits that the evidence of Mr Davidson's identification of the accused from the photoboard should not be admitted because its probative value is outweighed by the danger of unfair prejudice within the meaning of s 137 of the Evidence Act. Counsel also submits that the evidence should not be admitted in the exercise of the discretion under s 138 of the Evidence Act, on the basis that the evidence was obtained improperly.

The s137 exercise

18 The assessment of probative value is an assessment of a potential effect of the evidence in the sense of its capacity to advance the prosecution case. That assessment is made assuming that the evidence is accepted, and without speculating as to whether the jury would in fact accept the evidence or give it any particular weight: KMJ v Tasmania (2011) 20 Tas R 425; R v XY [2013] NSWCCA 121 per Basten JA at [66] - [67] (Hoeben CJ at CL, Simpson J agreeing). A reasonable jury could treat the evidence as directly establishing that the accused was the person who robbed Mr Davidson. Accordingly, the probative value of the evidence is very high.

19 The danger of unfair prejudice is said to lie in the identification by the wrong man, and that there was an opportunity for Mr Davidson to have become aware of the name of the accused. Additionally, it is said that there is the displacement effect arising from the identification from the CCTV footage of a particular person as the offender, along with the "rogues gallery" effect of the photoboard procedure. It is said that alone, or more particularly by their cumulative effect, these matters give rise to an unacceptably high level of risk that the jury would not appreciate the care which needed to be exercised, and may misuse the evidence.

20 I have already explained the factual basis for the first two matters said to give rise to the danger of unfair prejudice. The last matter comes about in the following way. When Sen Const Lane went to see Mr Davidson, she had with her the photoboard with coloured photographs. The accused's photograph was number 7 on the photoboard. She also had a black and white copy of the photoboard with the names of all 12 persons set out in capital letters next to the number and underneath the photograph. In the photoboard identification procedure form, Sen Const Lane noted that Mr Davidson took about five seconds before he said "That's him, number 7." When asked if he had any comment about his identification the recorded answer is "I recognised him straight away."

21 In a supplemental proof of evidence, Sen Const Lane says as follows:

"After Mr Davidson picked photograph number 7 he told me that he had earlier recognised Chatters from the black and white copy of the photoboard that I was holding with some other documents. This was before I handed him the coloured photoboard. He must have had a very brief glimpse of that document as his opportunity to see it was brief. The black and white copy had names under the photograph. At that time I had not said the name Nathan Chatters to Mr Davidson."

22 In cross-examination, Sen Const Lane said that Mr Davidson caught a glimpse of the black and white copy as she pulled the coloured copy out of a manilla folder which she had. She said that Mr Davidson said words to the effect of "I saw him on that other copy", which she took to be a reference to the black and white copy, as it was the only other one in the folder. She said that she did not specifically recall saying words to the effect of "You shouldn't have seen that", but did not dispute that it was said. She denied saying that when she went to see Mr Davidson she had told him that his original identification of the man in the mall was wrong, and that she had said words to the effect of "I am here to see if you can identify him again now." She did agree that at some earlier stage she would have told Mr Davidson that the "street ID ... was incorrect and that the particular chap's alibi did check out". She said she recalled Mr Davidson having a conversation with her in relation to tattoos on the hands of the person who robbed him, and him saying that the man wrongly identified did not have any.

23 In further cross-examination, Sen Const Lane denied that Mr Davidson said "that's him - that's Chatters there" or words to that effect when picking photo number 7. She said that there was no discussion about the name, and at that stage she did not think he even knew the name. As to the passage in her supplementary proof which I have set out above, she said that they were her words, and that Mr Davidson did not say "that's Chatters". Although I did not hear from Mr Davidson, in a proof of evidence he says that while Sen Const Lane was "shuffling through the documents" he saw a sheet of black and white photographs. When told that he was to be shown some photographs, he says he told Sen Const Lane that he had "already seen him". She replied that he was not supposed to see that sheet because it had writing on it. He responded that he had not seen any writing.

24 In the proof, Mr Davidson goes on to say that he did not in fact see any writing, he just glanced at the page "and looked straight at the face and recognised him". In his evidence in the preliminary proceedings, although it is a little unclear as to what set of photographs he was referring, Mr Davidson said that he saw the sheet, saw about 12 faces, "but his just jumped out ... in about a split second".

25 On the whole of the material, there is nothing to suggest that the glimpse of the black and white copy was anything other than a mere glimpse, and I find that Mr Davidson identified the accused by number, and not by name or number and name. There is no evidence that Mr Davidson knew of the name "Nathan Chatters" before the photo board identification. Further, I very much doubt whether a mere glimpse would enable a person to make out any of the names on the black and white copy. The fact that Mr Davidson was able to identify photograph number 7 as the photograph of the man who robbed him by virtue of the mere glimpse might be taken as reinforcing the identification, rather than detracting from it.

26 I have assessed the circumstances of the photoboard identification and the circumstances leading to it. No doubt a number of matters will be the subject of adverse criticism on the accused's behalf before the jury. They include the identification by the complainant of the wrong man, his identification from the CCTV of a person as the offender before the photoboard identification, and the circumstances immediately surrounding the photoboard identification. But an assessment of suggested unreliability is not, as I have said, part of the s 137 exercise.

27 In Domican v R [1992] HCA 13; (1992) 173 CLR 555, the High Court made clear the nature of directions required to be given by a trial judge to a jury about identification evidence and where there are displacement and similar issues at work. There are also ss 116 and 165(1)(b) of the Evidence Act which deal with directions about the reliability of identification evidence. That proper compliance with such directions may overcome suggested difficulties of considerable import was confirmed in R v Dupas (No 3) (2009) 28 VR 380, which involved identification witnesses who had seen newspaper and television articles describing the accused as a previously convicted killer and one who was possibly connected with the murder case being tried. Nettle, Ashley and Weinberg JJA all thought the evidence was admissible, with Nettle and Ashley JJA holding the directions adequate, whilst Weinberg JA dissented on that point. On the subsequent retrial, which proceeded under the provisions of the uniform evidence laws, Hollingworth J ruled that the probative value of the evidence was not outweighed by the danger of unfair prejudice and refused to exclude it: [2011] VSC 200 at [41] - [71].

28 The criminal justice system operates on the assumption and expectation that juries obey the directions of the trial judge: Crofts v R [1996] HCA 22; (1996) 186 CLR 427 at 441; Gilbert v R (2000) 201 CLR 414 per McHugh J at 425 - 426 [31] - [32]; R v Dupas (No 3) (above) per Weinberg JA at 434 [204]. In this case, I take the view that directions given in accordance with the Evidence Act and with Domican, as discussed and explained in R v Dupas (No 3), will alleviate the risk of unfair prejudice arising from the identified matters. The photoboard identification will not be excluded under s 137.

The s138 issue

29 The accused submits that I should exclude the photoboard evidence in the exercise of the discretion under s 138 on the basis that it is evidence which was obtained improperly. It is not suggested that it is evidence which was obtained in contravention of the law. The suggested impropriety is non-compliance with provisions of the Tasmania Police Manual, a copy of which - published in November 2012 - is in evidence. Part 4 is entitled "Investigation Procedure". Part 4.5.8 deals with photographic identifications. Paragraph (1) of Pt 4.5.8 provides that photographs shall only be shown to a witness in certain circumstances. Relevantly, they are:

"(a) if a suspect has been given the opportunity and declined to take part in an identification parade; or

(c) in the initial stages of investigation you need to establish the identity of a suspect or offender based on a verbal description given by the witness; ...".

30 Counsel for the accused referred to s 35(2) of the Police Service Act 2003, which provides that a police officer must comply with any lawful direction or lawful order of a senior officer. Whilst maintaining that the allegation is one of propriety and not illegality, counsel for the accused relies on the failure to give the accused the opportunity to take part in an identification parade.

31 In her evidence, Sen Const Lane agreed that the accused was not at any stage given the opportunity to take part in an identification parade. She also agreed that the accused had been found at that time, and that the investigation was not in its initial stages. In cross-examination, Sen Const Lane said that in the circumstances of this case, compliance with the need for the identification parade was not an issue. That comment appeared to be explained in re-examination. She was asked why it was that the photoboard identification procedure had been conducted at the particular time. Her reply was that she had been asked to do so by the Director of Public Prosecutions. She said that she did not at that time turn her mind at all to what the Police Manual says about photographic identification evidence.

32 When asked about her understanding as to the legal status of the Manual, she said that her understanding was that it was a guideline; "it is a document that if we are unsure as to certain procedures, how to proceed, this will give us some sort of guidance but as far as discretion is concerned and what have you, obviously that can't and doesn't take into consideration those sorts of things. It is a basic guideline, for want of a better term ... ".

33 There is no doubt that the published Manual is the Police Manual referred to in s 93 of the Police Service Act. That requires the Commissioner to cause a document known as the Police Manual to be published, and that it is to contain "any orders, directions, procedures and instructions issued by the Commissioner as the Commissioner considers appropriate". The Commissioner's foreword to the Manual dated 6 September 2010 says that the orders, guidelines and procedures are issued for the guidance of all personnel. Officers are required to act in accordance with the orders. "Whilst the Manual is designed to provide guidance to all personnel, in some cases non-compliance may be dealt with as a breach of discipline".

34 The section entitled "Instructions for Use" repeats the statement that while the Manual is intended as a guide, orders have to be complied with. The format of the Manual is such that the only delineation between orders, directions, procedures, instructions and guidelines, is that orders are specifically identified as such by name and by being placed within a box; some parts have "procedures" in the title.

35 From the format of the Manual, Pt 4.5.8(1) cannot be taken as an order. There is nothing to suggest that it amounts to a direction within the meaning of s 35 of the Police Service Act. There is nothing to suggest that Sen Const Lane's description is not, in general terms at least, correct. Having said that, it is clear that a breach of police guidelines may amount to an impropriety within the meaning of s 138: R v Em [2003] NSWCCA 374.

36 The accused bears the onus of establishing a ground for exclusion on the basis of impropriety. For the purposes of s 138, impropriety is to be judged in accordance with the minimum standards which society should expect and require of those entrusted with powers of law enforcement. The conduct must not merely blur or contravene those standards in some minor respect; it must be quite inconsistent with, or clearly inconsistent with those standards: Robinson v Woolworths Ltd [2005] NSWCCA 426; (2005) 64 NSWLR 612 per Basten JA at 618 - 619 [23]; Tasmania v Seabourne [2010] TASSC 35 at [27].

37 Crown counsel submits that whilst Sen Const Lane may have been subject to the Police Manual, the Director of Public Prosecutions was bound only by the Evidence Act. Second, Crown counsel correctly points out that impropriety as alleged in this case needs to be assessed against the background in which the Tasmanian Parliament, when enacting the uniform evidence laws, chose not to include ss 114 and 115 in the Evidence Act. Section 114 makes visual identification evidence (which does not include photo identification) not admissible unless an identification parade has been held, or it would not have been reasonable to do so, or the defendant has refused to take part. Section 115 makes picture identification evidence not admissible in certain circumstances in which the accused person was in police custody.

38 As Blow J (as he then was) observed in Director of Public Prosecutions v Lynch [2006] TASSC 89; (2006) 16 Tas R 49 at 62 [35], those sections "... are intended to promote the use of identification parades and reduce the use of photo identification evidence so that, as far as is reasonably possible, juries will be presented with identification evidence of the most reliable kind". That does not mean that, as his Honour pointed out, fairness is irrelevant in an inquiry under s 138, but it is something to be taken into account when assessing impropriety.

39 In the circumstances of this case, I am not satisfied that the evidence was improperly obtained. I am simply unable to see how, in the circumstances of this case, carrying out a photoboard identification at the request of the office of the Director of Public Prosecutions can be said to be improper conduct. If I am wrong about that, I would admit the evidence on the basis that the desirability of admitting it outweighs the undesirability having regard to the way in which the evidence was obtained. I have regard to the relevant matters set out in s 138(3). In particular, the probative value of the evidence is high, it is important evidence in the proceeding, and the charge against the accused is of a serious crime. I do not consider the impropriety to be at all grave, given the circumstances.

40 Counsel for the accused seems to raise an additional aspect of impropriety relating to the photographs which were used. As I understand it, the suggestion is that the photograph of the accused was one of two which appear to be more exposed than the others. Sen Const Lane did not agree with that suggestion when it was put to her. The submission seems to be that as the two photographs are a little darker, the eye would be drawn more to those two than the other ten. Accepting for the moment that the two may be regarded as having darker backgrounds, I am not able to see any way in which this would operate unfairly. I am not able to see any impropriety in the way in which the photoboard was compiled. Such criticisms will be a matter for the jury to assess.

41 Part of Sgt McCulloch's evidence-in-chief was as follows:

"And do you know the accused, Mr Chatters?......I do.

How do you know him?......Nathan Grant Chatters is a person that's very well known to police. In my time at the Police Service he's been pointed out to me or I've pointed him out to a number of other officers, ... -

WITNESS: He's a known criminal, your Honour, and he's a person of interest to the police quite often.

MR SHAPIRO (Resuming): And when you say you've pointed him out and had him pointed out in what sort of context is that?......In the street, your Honour. If you're driving along and you notice someone of interest to us then generally you point it out to the person that you're working with, and vice versa, I've had both Mr Chatters and other people pointed out to me.

And similarly could be, you know, walking and see Mr Chatters in that context?......Oh yes, definitely, I've seen him walking around Moonah, Derwent Park often.

How about photographs of him, have you seen those?......Yes, many.

In what sort of context?......They've either been on circulars at work in relation to information that we have received in relation to Mr Chatters or alternatively, just when we check him on the general database, photographs are on that database.

Did you - were you stationed at Glenorchy for a period?......Yes, your Honour, a little over two years.

When was - when was that?......Two thousand and - late 2008 late 2011.

And during that period did you deal with Mr Chatters at all?......Ah yes, I did. I had cause to go to his address at 17 Athol Street at least twice where I spoke to him at that address, your Honour. Also I recall a specific occasion on I think it was it was the 13th of June 2011, I think it was, where he was taken into custody in relation to a domestic investigation for a family violence investigation, and I had cause to speak to him for a lengthy period of time face to face.

What - when you had to speak to him for a long time what was he - was he making a complaint -......I was both custody officer at the time and also he indicated that after he was released on this occasion unconditionally that he wanted to make a complaint in respect of the way he was dealt with on that day. I subsequently made arrangements to speak to him the following day.

So you made that arrangements with him?......Directly with him, yes.

And so he had quite a lot to say to you about that, did he?......Yes, he wanted to - at - obviously I had to do all the charge procedure, which took some time, then he indicated he wanted to - to talk to me about the complaint. I didn't have a long conversation with him about that complaint because I wasn't in a position to at that stage -

I see. ......- hence the appointment for the following day.

Thank you. But he didn't attend the following day?......No.

HIS HONOUR: This is a complaint about other police officers, was it, that you -

WITNESS: It was about arrest and the procedures that took place on the day of the family violence investigation, your Honour."

42 Sgt McCulloch went on to say that the person in the Chemist Warehouse CCTV footage is the accused. When asked what is it about the footage that allows him to say that, he said, "It's not only just the footage it's also voice in the footage ...". He went on to say:

"His general demeanour, his build, his size, his profile - because I've seen him so often he's a person that I just kind of automatically recognise. And in particular when I heard the voice on this, although I knew it was him when I first looked at it, the voice on this matter [sic] just reinforced my belief that it was him."

43 He said that he was not told who it was before he was shown the footage. When asked if there was anything about the way the person moved that led him to the conclusion that it was the accused, Sgt McCulloch said:

"Oh he walks very casually but he's ... very confident about the way he walks around as well, so it's almost - I can't think of the word to describe it, be he's - oh almost arrogant in the way he walks, but he does but he's just very casual and, as I say, confident. He doesn't walk with his head down or anything like that, generally he's got his head raised and he's a very confident person."

44 When asked what was there about the voice that assisted him in reaching the conclusion, Sgt McCulloch said, "He speaks very roughly and abruptly, so the manner in which he was just talking that is pretty much how he has been when I've previously dealt with him."

45 In cross-examination, the sergeant said that he had known the accused for more than 15 years. He said that he believed the video footage was circulated around the CIB office, and that a number of people looked at it. He said that he was not with anybody else when he looked at it.

46 The accused submits that the evidence is not admissible as it is irrelevant. Counsel relies on the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Smith v R [2001] HCA 50; (2001) 206 CLR 650. Their Honours held that evidence of police officers identifying the appellant as the person in bank CCTV footage taken at the time the bank was robbed, was not relevant.

"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 provide 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 neither 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."

48 Their Honours went on to say at 656 - 657 [14] - [15]:

"Sometimes the facts in issue will extend beyond the narrow question whether the accused is the person depicted in the photograph. ...

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."

49 At 663 - 665 [41] - [47], Kirby J held the evidence to be relevant, but went on to hold that it was evidence of opinion not of fact. As evidence of opinion it was not admissible because of s 76 of the Evidence Act, and because it did not fall within the exception provided for in s 78. Section 78 provides that the opinion rule does not apply to evidence of an opinion expressed by a person if the opinion is based on what the person saw, heard or otherwise perceived about a matter or event, and the evidence of the opinion is necessary to obtain an accurate account or understanding of a person's perception of the matter or event. Kirby J took the view that the "matter or event" was the robbery, and that "[a]lthough the security photographs record the robbery taking place, the opinion of the police officers is 'based on' photographs and not, as such, 'based on' the robbery itself' which they did not see, hear or otherwise perceive": 669 - 670 [60].

50 Evidence of persons identifying an accused from CCTV footage, or still photographs taken from such footage, has been admitted in a number of subsequent cases as falling within the exceptions outlined in par [15] of the joint judgment in Smith, and as also coming within the exception to the opinion role provided for in s 79 (opinions based on specialised knowledge: R v Leung [1999] NSWCCA 287; (1999) 47 NSWLR 405, R v Drollett [2005] NSWCCA 356, Li v R [2003] NSWCCA 290; (2003) 139 A Crim R 281 and Murdoch v R [2007] NTCCA 1; (2007) 167 A Crim R 329. Where the evidence comes from great familiarity and can be more correctly described as "recognition" evidence and not "identification" evidence, it might be classified as evidence of fact and not of "ad hoc" opinion: R v Marsh [2005] NSWCCA 331.

51 Some criticisms might be made about the extent to which the CCTV footage makes the person's features and the way in which he walks readily discernible, but those are questions of weight. There are sufficient features of this case to make the evidence relevant in accordance with the joint judgment in Smith. First, there is an issue of appearance. The man in the CCTV footage, suggested to be the accused, is wearing a cap. This often obscures his face, particularly because the camera is angled downwards. To me at least, the man clearly has a goatee beard. Both in the photograph on the photoboard and when in court before me, the accused was not clean shaven, but the growth was more of a stubble than a beard.

52 The second point relates to Sgt McCulloch's evidence about the accused's demeanour including the way in which he walks, and his familiarity with the accused's voice. A distinctive manner of walking would not be apparent to the jury: Li v R [2003] NSWCCA 290; (2003) 139 A Crim R 281 at 294 [106]. It is true that the jury are to be played the audio/visual recording of the police interview with the accused. (The DVD of that interview was not tendered in these proceedings, although I do have the transcript.) From that they will no doubt gain some impression of his appearance, along with his demeanour, at least in that environment. Jurors will also gain some appreciation of his voice and manner of speaking. However, Sgt McCulloch's level of familiarity with all of the identifying features puts him in a much better position than the jury to attempt to identify the accused from the footage.

53 I turn to the alternative argument that the probative value of the evidence is outweighed by the danger of unfair prejudice. In terms of the s 137 exercise, taking the evidence at its highest, it is capable of putting the accused in the Elizabeth Street bus mall shortly before the robbery. When assessing the danger of unfair prejudice, it seems that the better view is that probative value needs to be assessed alongside other evidence given or to be given. Evidence which adds little may be more easily outweighed: ALRC Report 102 "Uniform Evidence Law" at par 16.15; Aytugrul v R [2012] HCA 15; (2012) 86 ALJR 474 at 482 - 483 [26] - [30].

54 The jury may conclude from the accused's answers in the police interview, that it is he who is shown in the Chemist Warehouse CCTV footage at about 2.25pm. A comparison of the clothing taken from the accused may assist in that process. The jury can also assess for itself the similarity of the person in the Chemist Warehouse CCTV footage to the person identified by Mr Davidson as his attacker in the other footage immediately before and after the robbery. The same exercise can be undertaken in relation to the photograph of the accused identified on the photoboard. Sgt McCulloch's evidence is however, more direct, and is the only evidence which would, if accepted, unequivocally place the accused in the bus mall at the relevant time.

55 The danger of unfair prejudice of course, lies in the fact that Sgt McCulloch's knowledge of and familiarity with the accused comes from his dealings with him as a police officer as such, and not through, for instance, sporting or community associations, as in R v Stamp [2012] NTSC 18. The evidence would suggest the accused's criminality, albeit of a general nature. The issue is what inferences may be drawn from the foundational evidence of knowledge and familiarity. The accused submits that the evidence of the basis of the officer's knowledge amounts to evidence of bad character, the risk being that a jury would use it to make a decision on an improper or emotional basis. No other unfair prejudice was relied on. Questions of degree are involved, but the resolution of the question under s 137 will depend on precisely what evidence is led as to the basis of his knowledge and familiarity, and how it is led.

56 The accused submits that directions of the trial judge that the jury should not speculate as to the nature of the matters giving rise to Sgt McCulloch's knowledge of the accused, nor draw any adverse inferences from the fact of the knowledge, would be insufficient to negate the danger. Crown counsel submits that the Sgt's evidence could be tailored to mitigate the effect of the evidence.

57 Of the statements made in evidence, the following would be highly prejudicial, with little prospect of appropriate directions sufficiently ameliorating the danger caused.

• The accused is very well known to police;
• He is a known criminal;
• He has been pointed out a number of times by other officers as part of a general matter of police interest;

58 Sgt McCulloch has seen many photographs of the accused on circulars at work, or when he has been checked on the database.

59 The danger of unfair prejudice created by the foundational evidence of knowledge and familiarity would be significantly reduced if it were limited. It seems to me that it would not unduly limit the weight of Sgt McCulloch's evidence if the following matters were led as the foundational evidence.

• Sgt McCulloch has known the accused for more than 15 years.
• He has seen the accused walking around Moonah and Derwent Park quite often.
• During a time between late-2008 and late-2011, Sgt McCulloch had cause to go to the accused's address on at least two occasions at which time he spoke to him. (There would be no need to reveal that the purpose was to speak to the accused about an incident of domestic violence.)
• In June 2011, the accused was at the police station and wanted to make a complaint. At that time, Sgt McCulloch had a conversation with him which took some time. Arrangements were made for him to return the following day to deal more fully with the complaint, but he did not keep the appointment.
• Sgt McCulloch has spoken to him on other occasions.

60 I have given this issue careful consideration. Assuming the evidence is confined along the lines which I have outlined, and assuming an appropriate directions would be given warning against speculation and drawing adverse general inferences, I decline to exclude the evidence. I do not think that the evidence led as I have outlined is cogent evidence of bad character, or such that would cause serious damage to the character of the accused in the eyes of the jury. Juries are not infrequently entrusted with evidence of discreditable conduct which is admitted for purposes other than that it amounts to tendency or coincidence evidence. Such evidence is usually described as "relationship" evidence or "context" evidence. That evidence is accompanied by strict directions as to the use to which the evidence is to be put, and warnings against drawing inferences of general bad character and propensity.

61 I repeat the proposition that the criminal justice system operates on the assumption and expectation that juries obey the directions of the trial judge: see the cases cited in par [28] above. However, prejudicial effect within the meaning of s 137 is to be evaluated without such a foreclosing assumption: R v GAC [2007] NSWCCA 315; (2007) 178 A Crim R 408 per Giles JA at 431 [87] (Hulme and Hislop JJ agreeing). Of course, the section contemplates that there may remain a danger of unfair prejudice, but because the probative value of the evidence outweighs any prejudice that it creates, it is not excluded: TKWJ v R [2002] HCA 46; (2002) 212 CLR 124 per McHugh J at 154 [90]. There needs to be an assessment of the extent to which appropriate directions will eliminate or mitigate the danger.

62 Accompanied by appropriate warnings from the trial judge about the use of the foundational evidence as earlier outlined, I do not see that there is a real risk that it would "inflame the jury or divert the jurors from their task": Festa v R (2000) 208 CLR 593 per Gleeson CJ at 610 [51]. The probative value of the identification evidence outweighs any residual danger. I add, without meaning to interfere with the way in which the trial judge conducts the case, that consideration might be given to granting leave under s 37 of the Evidence Act for the foundational evidence to be led. That may minimise the risk of much more damaging evidence inadvertently being given, but it is a matter for the trial judge and the parties. I should say that I have not reached my conclusion on the assumption that this will occur.

63 Crown counsel suggested that the evidence could be led without revealing the identity of Sgt McCulloch as a police officer. Clearly the substance of his evidence would have to be significantly modified if that were to occur. I think this would create too many difficulties in both examination-in-chief and cross-examination, and run the risk that the jury might strongly suspect that the witness is a police officer. That would give rise to the potential of unbridled speculation, unchecked by directions from the trial judge.

64 It follows from what I have said that my rulings are:

a) the counts are properly joined, and the indictment will not be severed;

b) the evidence of the photoboard identification by the complainant will not be excluded;

1. the evidence of the identification by Sgt McCulloch of the accused from the CCTV footage is admissible, and subject to the foundational evidence being confined as I have outlined, is not excluded under s 137.