Citation: Regina v Nelson [1999] NSWCCA 221
Court: Court of Criminal Appeal, New South Wales
Date: 10 August 1999
Judge(s): Newman J, Sperling J, Greg James J
Background
The appellant was convicted in the District Court of stealing a motor vehicle and three offences committed during an armed robbery at a supermarket: assault with intent to rob, and two counts of armed robbery. The robbery involved an offender who held a sawn-off shotgun against employees while demanding money. Two employees noted a distinctive green tattoo on the back of the offender's hand, and the appellant had matching tattoos.
The day after the robbery, police showed one of the victims, Mr Waterson, a series of eleven photographs. He selected the appellant's photograph with a high degree of expressed confidence. Several months later, other witnesses were shown a video of still photographs but could not make positive identifications, although one selected two images as resembling the offender, one of which depicted the appellant.
The appellant appealed against his convictions for the robbery offences on two grounds: first, that the trial judge should have excluded Mr Waterson's picture identification evidence under s 137 of the Evidence Act 1995; and second, that the verdicts were unsafe and unsatisfactory.
Legal Issues
- Whether the trial judge erred by refusing to exclude Mr Waterson's picture identification evidence under s 137 of the Evidence Act 1995, on the basis that its probative value was outweighed by the danger of unfair prejudice
- Whether the convictions were unsafe and unsatisfactory, in that the picture identification evidence was insufficient to support a verdict of guilty beyond reasonable doubt
Decision
On the first ground, Sperling J acknowledged genuine limitations in the identification evidence. These included the inherent risks of picture identification generally, the witness's distress during the robbery, the absence of unusual facial features in the offender, and the fact that he wore sunglasses. Sperling J also accepted that the police officer's words before showing the photographs implied the series likely contained a photograph of a suspect, creating a risk the witness would select the closest match rather than a clear recognition.
Despite these limitations, Sperling J concluded that the only finding reasonably open to the trial judge was that the evidence had substantial probative value. That conclusion was strengthened by the corroborating tattoo evidence from two other witnesses and the resemblance evidence from Ms Nicolaou's partial identification. On unfair prejudice, Sperling J accepted that the jury might infer the appellant was adversely known to police before the offence. However, a direction to the jury was to be given, and taking all matters together, the trial judge could not reasonably have exercised the discretion other than to admit the evidence. Ground 1 failed.
On the second ground, the appellant argued that Mr Waterson's picture identification evidence alone was insufficient to support a conviction beyond reasonable doubt. Sperling J applied the test from the High Court authorities: whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt. Mr Waterson's evidence at trial was, if anything, expressed with even greater confidence than the police record suggested. Combined with the tattoo evidence and the resemblance identification, and in the absence of any significant inconsistency in witness descriptions, the verdicts were not unsafe. Ground 2 also failed.
The application for leave to appeal against sentence was contingent on success in the conviction appeal. Having dismissed that appeal, the Court did not consider the sentence application.
Orders Made
- Appeal against conviction dismissed
- Application for leave to appeal against sentence dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that substantial probative value in identification evidence can survive acknowledged limitations, provided those limitations are weighed carefully against corroborating evidence in the same proceedings.
- Under s 137 of the Evidence Act 1995, a trial judge's discretion to exclude evidence is enlivened only where the danger of unfair prejudice outweighs probative value; in this case, corroborating physical and resemblance evidence tipped the balance firmly toward admission.
- Suggestive police questioning before a picture identification procedure is a relevant consideration in assessing probative value, but it does not automatically render identification evidence inadmissible.
- Prejudice arising from a jury inference that an accused was known to police prior to an offence is a real concern, but an appropriate jury direction is a recognised means of mitigating that prejudice.
- In assessing whether verdicts are unsafe and unsatisfactory, the applicable test drawn from High Court authority asks whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the accused's guilt.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), ss 115(7), 137
Cases:
- M (1994) 181 CLR 487
- Jones (1997) 191 CLR 439
- Gipp (1998) 194 CLR 106
- Cook (1998) 126 NTR 17
- Richards (NSW Court of Criminal Appeal, 27 November 1995, unreported)