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6
Court of Criminal Appeal 26 May 2000

R v Gee

[2000] NSWCCA 198

Also reported as [2000] 113 A Crim R 376
Assault & violenceTheft & property
CRIMINAL LAW INCIDENCE EVIDENCE ADEQUACY OF DIRECTIONS TO JURY RECOGNITION EVIDENCE CROWN WITNESSES' EVIDENCE UNFAVOURABLE

Citation: R v Gee [2000] NSWCCA 198
Court: NSW Court of Criminal Appeal
Date: 26 May 2000
Judge(s): Spigelman CJ, Grove J, Hidden J

Background

The appellant was convicted in the District Court on four counts of armed robbery following a jury trial before Armitage DCJ. The robberies occurred between June and August 1997 at a bank and several building societies in the Newcastle and Lake Macquarie area. On each occasion the offender acted alone, and the sole issue at trial was whether the appellant was that person.

Security cameras photographed the offender during several of the robberies, and witnesses who knew the appellant gave evidence that he was the man depicted. The Crown also relied on circumstantial evidence, including vehicle descriptions, clothing, and evidence from a companion who said the appellant asked him to provide a false alibi and gave him a sum of money to hold. The appellant denied any involvement.

Two Crown witnesses, the appellant's current de facto wife and the de facto husband of his daughter, gave evidence in chief that the man in the security photographs merely resembled the appellant. Both were granted leave to be cross-examined as unfavourable witnesses, and in each case a detective gave evidence that the witness had earlier made a positive identification of the appellant.

  • Whether the trial judge's directions to the jury on coincidence evidence were adequate under s 98 of the Evidence Act 1995
  • Whether the out-of-court recognition statements made by the two Crown witnesses to police were admissible, and on what basis under the Evidence Act 1995
  • Whether the evidence of the detectives contradicting those witnesses was properly admitted

Decision

Coincidence evidence directions: The Court found no error in the trial judge's directions on coincidence evidence. The similarities between the offences were not disputed as sufficient to constitute coincidence evidence, and the directions given were adequate in the circumstances.

Admissibility of out-of-court recognition evidence: All three judges agreed the detectives' evidence was admissible, though they differed on the precise statutory pathway. Grove J analysed the evidence as hearsay within s 59(1) of the Evidence Act 1995, but admissible under the s 66(2) exception, reasoning that recognition evidence has a distinct quality: what must be "fresh in the memory" is not a fleeting prior encounter but the witness's continuing familiarity with the person depicted. Hidden J preferred to ground admissibility in s 60, by which prior inconsistent statements, once properly put to a witness under s 43, become evidence of the truth of their contents.

Unfavourable witness procedure: Once the two witnesses gave evidence in court that the photographs merely showed someone resembling the appellant, the Crown was entitled under s 43(1) to put their earlier positive identifications to them. When they denied having made those identifications, s 43(2) permitted the Crown to call the detectives to contradict them. Under s 60, as confirmed in R v Adam, the jury could treat that evidence as proof that the witnesses had in fact recognised the appellant.

Evidence of police recognition: Hidden J noted, by way of observation, that evidence of police officers having recognised the appellant when first shown the photographs should not have been led. Recognition by a familiar person is not enhanced in reliability by an earlier out-of-court expression of it, and the primary evidence remains the witness's testimony in court. That observation did not, however, affect the outcome.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Under s 66(2) of the Evidence Act 1995, recognition evidence has a distinct character: what must be "fresh in the memory" is the witness's ongoing familiarity with a known person, not a specific prior encounter, which distinguishes it from identification evidence based on a fleeting observation.
  • Where a Crown witness gives unfavourable in-court evidence, the combination of ss 43, 60, and 66 provides overlapping statutory pathways by which prior inconsistent out-of-court identifications may be admitted as evidence of the truth of what was asserted, not merely as credibility material.
  • In dismissing the appeal, Hidden J expressed the view that evidence of police officers recognising an accused in security photographs, when shown those photographs prior to trial, should generally not be led, as it adds nothing to the reliability or weight of the recognition evidence ultimately given in court.
  • No error was established in the coincidence evidence directions, confirming that adequacy of such directions is assessed in light of the specific similarities relied on and the overall conduct of the trial.
  • Spigelman CJ confirmed that the detectives' evidence engaged s 59(1) as a "previous representation" but fell within the exceptions in both s 60 and s 66, with the precise scope of each provision left open for cases where the issue directly arises.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW): ss 43, 59, 60, 66, 98, 137

Cases:
- R v AH (1997) 42 NSWLR 702
- Alexander v The Queen (1981) 145 CLR 395
- R v Barbaro & Ors (1993) 67 A Crim R 456
- Graham v The Queen (1998) 195 CLR 606
- R v McGuire [1975] 4 WWR 124
- R v Mundarra Smith (1999) 47 NSWLR 419
- Sutton v The Queen (1983-84) 152 CLR 528
- R v Osbourne [1973] QB 678
- R v Adam (1999) 47 NSWLR 267