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6
Court of Criminal Appeal 21 October 1999

REGINA v SMITH

[1999] NSWCCA 317

Also reported as 47 NSWLR 419
Theft & property
CRIMINAL LAW ROBBERY CONVICTION NO ERROR OF LAW IN ADMITTING EVIDENCE EVIDENCE WHETHER OPINION EVIDENCE

Citation: Regina v Smith [1999] NSWCCA 317
Court: Court of Criminal Appeal, New South Wales
Date: 21 October 1999
Judge(s): Sheller JA; Grove J; Hidden J

Background

The appellant was convicted by a jury in the District Court of robbery in company, arising from a bank robbery at Caringbah on 26 June 1997 in which approximately $16,600 was taken. The Crown case was that the appellant had acted as a lookout inside the bank while other offenders accessed the teller area. Still photographs enlarged from the bank's security camera footage showed a male near the front door wearing a hooded jacket.

Several days after the robbery, police officers who knew the appellant viewed those photographs and identified the person depicted as the appellant. Notably, none of the bank employees or other robbery witnesses identified the appellant when shown a video compilation of faces. The Crown acknowledged that the police photographic identification evidence was central to its case.

The appellant was sentenced to a minimum term of three years and ten months penal servitude. He appealed against both the conviction and the sentence.

  • Whether the identification evidence given by police officers, recognising the appellant from security camera photographs, constituted opinion evidence subject to the opinion rule under s 76 of the Evidence Act 1995 and should have been excluded.
  • Whether, if characterised as opinion evidence, it was nevertheless admissible under s 78 of the Act (the lay opinion exception).
  • Whether the trial judge erred in the exercise of discretion by declining to exclude the evidence under ss 135 and 137 of the Act on the basis that its prejudicial effect outweighed its probative value.
  • Whether the conviction was unreasonable or could not be supported having regard to the evidence.

Decision

The Court of Criminal Appeal dismissed both grounds of appeal, with Sheller JA delivering the principal judgment and Grove J and Hidden J agreeing.

On the central question of whether the police evidence was opinion evidence, Sheller JA reasoned that the fact-opinion distinction is one of degree rather than kind, and that the operative question under s 76 of the Evidence Act 1995 is simply whether the particular evidence constitutes "evidence of an opinion" within the meaning of that section. It does not require a preliminary sorting of all evidence into two discrete categories.

The Court held that, for a witness who knows a person well enough to recognise them on sight, identifying that person from a photograph involves no greater inference than identifying them when encountered in the street. In both cases the evidence may be mistaken, but it remains direct evidence of fact rather than opinion. The Court distinguished this kind of recognition evidence from the conventional photo identification procedure, where a witness who cannot name a suspect is shown photographs compiled by police. The security camera photographs and the jury's own view of the photographs were before the jury, making the weaknesses of the identification more transparent and assessable.

Because the police evidence was characterised as direct evidence of fact, s 76 had no application and there was no need to consider s 78. On the discretionary exclusion grounds, the Court found no error in the trial judge's exercise of discretion under ss 135 and 137. Her Honour had weighed the relevant considerations, including the directions available to minimise prejudice, and it was well open to her to conclude that probative value was not outweighed by unfair prejudice. On the second ground, the submission that the photographs were insufficiently clear to support an identification was rejected as no more than bare assertion.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • A witness who knows a person well enough to recognise them on sight gives direct evidence of fact, not opinion evidence, when identifying that person from a photograph. The opinion rule in s 76 of the Evidence Act 1995 does not apply to such evidence.
  • The fact-opinion distinction operates as a continuum rather than a binary classification. Under s 76, the relevant question is whether the evidence constitutes "evidence of an opinion" within the meaning of the section, not which of two fixed categories it falls into.
  • Recognition evidence from a person already acquainted with the accused is analytically distinct from conventional photographic identification procedures, where an eyewitness who cannot name a suspect is shown a police-compiled photo array.
  • No error in the exercise of a trial judge's discretion under ss 135 and 137 was established merely by identifying potential weaknesses in identification evidence. The availability of jury directions to address prejudice is a relevant consideration in that balancing exercise.
  • In dismissing the second ground, the Court of Criminal Appeal affirmed that a bare assertion about photograph quality, unsupported by developed argument, is insufficient to establish that a conviction was unreasonable or unsupported by the evidence.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 76, 78, 135, 137

Cases:
- R v Palmer (1981) 1 NSWLR 209
- R W Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 34 NSWLR 129
- Allstate Life Insurance Co Ltd v Australian and New Zealand Banking Group Ltd (No 5) (1996) 64 FCR 73
- Domican v The Queen (1992) 173 CLR 555
- Alexander v The Queen (1981) 145 CLR 395
- House v The King (1936) 55 CLR 499