Citation: R v Smith [2000] NSWCCA 388
Court: New South Wales Court of Criminal Appeal
Date: 10 May 2000 (reasons published 6 October 2000)
Judge(s): Foster AJA, Dunford J, Smart AJ
Background
The appellant was convicted in the District Court of armed robbery following an incident in Leichhardt on 14 February 1998. The complainant, a pedestrian, was confronted by a man who held a large knife above his head, demanded her shoulder bag, and fled to a waiting car. She provided a description of her attacker and, two days later at a nearby shopping centre, recognised the appellant standing outside a supermarket. After independently verifying her identification on multiple occasions before calling police, she positively identified the appellant in a formal line-up of eleven men at Balmain police station.
The appellant denied any involvement and presented an alibi, claiming he had spent the evening driving long distances with his brother. The jury rejected that alibi. He was sentenced to a minimum term of two years penal servitude commencing 2 December 1998, with an additional term of three years.
On appeal, the appellant raised three grounds: that the trial judge gave inadequate directions about the appellant's inconsistent accounts; that fresh psychological evidence about identification reliability should have been admitted; and that the directions on identification evidence were deficient.
Legal Issues
- Whether the trial judge was required to direct the jury specifically on how to treat the appellant's inconsistent accounts of his whereabouts on the night of the robbery
- Whether evidence from a psychologist (Professor Thomson) on the reliability of eyewitness identification constituted admissible fresh evidence, the absence of which caused a miscarriage of justice
- Whether the trial judge's directions on identification evidence were adequate, including whether the judge was required to address the significance of the complainant recognising the appellant in similar clothing to that worn during the robbery
Decision
Inconsistent accounts: The Court found no error in the summing-up on this ground. The appellant had himself explained his inconsistencies at trial, attributing them to being "put on the spot" and to daily cannabis use affecting his memory. The trial judge's directions adequately covered the alibi evidence and the differing accounts given by the appellant and his brother. No specific additional direction was required in the circumstances.
Fresh psychological evidence: The Court examined whether Professor Thomson's proposed evidence about the fallibility of eyewitness identification qualified as fresh evidence. Even accepting its potential relevance, the Court concluded that the evidence concerned matters within the ordinary knowledge and experience of jurors. The trial judge had already given detailed directions drawn from the High Court's guidance in Domican v The Queen on the dangers of identification evidence. The Court further held that, even if the evidence were tendered, it would have been excluded under section 135(c) of the Evidence Act 1995 because its probative value was substantially outweighed by the danger of undue waste of time. The Court noted that such expert evidence would have generated extensive additional proceedings and diverted focus from the core identification question.
Identification directions: The appellant's sole complaint under this ground was that the trial judge failed to direct the jury about the potential significance of the complainant having seen the appellant wearing similar clothing 38 to 40 hours after the robbery. The Court held that while this point was not addressed in the conventional way, it had not been overlooked: the judge had referred to the relevant cross-examination and the complainant's response, which itself undermined the point the appellant sought to make. No further direction had been requested at trial, and senior trial counsel for the appellant had described the summing-up as very fair. No miscarriage of justice was established.
Orders Made
- Appeal dismissed
- Conviction and sentence confirmed
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a trial judge is not required to give specific directions on every inconsistency in an accused's account, provided the directions overall fairly address the alibi and the conflicting versions before the jury.
- Expert psychological evidence on the general fallibility of eyewitness identification does not automatically warrant admission as fresh evidence, particularly where the subject matter falls within ordinary juror experience and the trial judge has already given thorough identification directions.
- Under section 135(c) of the Evidence Act 1995, evidence may be excluded where its probative value is substantially outweighed by the danger of undue waste of time, and the Court treated this as a live consideration even for potentially relevant expert opinion.
- Detailed identification directions in accordance with Domican v The Queen (1991-92) 173 CLR 555 may adequately address the risks of misidentification without the need for additional expert testimony.
- No miscarriage of justice arose from the trial judge's failure to address the clothing issue in the conventional manner, where the complainant's own answer during cross-examination had already neutralised the point and no further direction was sought by defence counsel.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), section 135(c)
Cases:
- Domican v The Queen (1991-92) 173 CLR 555
- Smith v The Queen (1990) 64 ALJR 588
- Ratten v The Queen (1974) 131 CLR 510
- Lawless v The Queen (1979-80) 142 CLR 659
- Gallagher v The Queen (1985-86) 160 CLR 392
- Mickelberg v The Queen (1988-89) 167 CLR 259
- R v Murray (NSW Court of Criminal Appeal, unreported, 11 September 1998)