Citation: Regina v McKellar [2000] NSWCCA 523
Court: NSW Court of Criminal Appeal
Date: 11 December 2000
Judge(s): Fitzgerald JA, Whealy J, Howie J
Background
The appellant was convicted by a District Court jury of armed robbery contrary to s 97 of the Crimes Act 1900. The alleged offence occurred on the evening of 10 May 1999 at a hotel in Bourke, where three men entered and robbed the premises. One of the robbers jumped the bar, seized a cash register, and held a knife to the throat of the hotel licensee's wife (referred to here as the identifying witness).
The identifying witness believed that the second robber was the same man who had briefly entered the hotel roughly half an hour earlier asking about purchasing beer. The Crown's entire case rested on her photographic identification of the appellant, made on 4 June 1999, approximately one month after the robbery.
Police had attempted to hold a live identification parade but could only find four volunteers in Bourke, well short of the approximately twelve required. They proceeded instead with a photographic array of 15 images, one of which was a photograph taken of the appellant shortly after his arrest. No other evidence linked the appellant to the offence.
Legal Issues
- Whether the photographic identification evidence was admissible under s 115 of the Evidence Act 1995, specifically whether the photograph used was taken while the appellant was "in the custody of a police officer"
- Whether the trial judge erred in failing to exclude the identification evidence under ss 137 or 138 of the Evidence Act 1995
- Whether the verdict was unreasonable and incapable of being supported by the evidence
Decision
The Court allowed the appeal on the ground that the jury's verdict was unreasonable and could not be supported by the evidence, rendering it unnecessary to finally resolve the admissibility questions (though Howie J expressed serious reservations about them).
Howie J identified several compounding weaknesses in the identification evidence. The identifying witness could not clearly articulate how she recognised the appellant from the photographs, which deprived the jury of material needed to test the reliability of her identification. Her in-court description of the robber's height was inconsistent with her earlier statement to police, and she was unable to satisfactorily explain the discrepancy.
The identification was made one month after the robbery. Notably, neither the identifying witness nor her husband had identified the appellant from an initial photographic array shown on the night of the robbery, pointing instead to his brother as being similar to the robber. Howie J found it difficult to accept that the identifying witness had retained a sufficiently accurate mental image to correctly distinguish the appellant from his brother a month later. The court observed that no evidence excluded the reasonable possibility that the robber was in fact the appellant's brother.
Applying the principles in Alexander v The Queen, the Court held that it was not bound to defer to the jury's assessment of the identification evidence in circumstances where the court was in no worse a position than the jury to evaluate its reliability. The Court could not exclude a reasonable possibility that the verdict was wrong.
Orders Made
- Appeal allowed
- Conviction quashed
- Verdict of acquittal entered
Key Takeaways
- A conviction resting entirely on a single photographic identification, where the witness cannot articulate the basis for their recognition and where a close relative of the accused was initially indicated as the likely offender, may be found unreasonable and unsupportable.
- Under s 115 of the Evidence Act 1995, questions arise as to whether a photograph taken of a person following arrest, but in circumstances where they have been released and then attend voluntarily, satisfies the requirement that the photograph be taken while the person is "in the custody of a police officer."
- The passage of one month between the alleged offence and a photographic identification, combined with the failure to identify the correct person from an earlier array, can significantly undermine the reliability of that identification.
- Where the reliability of eyewitness identification evidence turns on matters equally assessable by an appellate court as by the jury, the Court of Criminal Appeal is not required to defer to the jury's verdict.
- The unchallenged existence of a close physical resemblance between the accused and a near relative, combined with no evidence excluding the relative as the perpetrator, formed a central pillar of the Court's conclusion that the verdict was unreasonable.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 115 (photographic identification evidence); ss 137, 138 (exclusion of evidence)
- Crimes Act 1900 (NSW), s 97 (armed robbery)
Cases:
- Alexander v The Queen (1981) 145 CLR 395