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Court of Criminal Appeal 4 July 2000

R v HMB

[2000] NSWCCA 554

Assault & violenceTheft & property
CRIMINAL LAW EVIDENCE IDENTIFICATION ADMISSIBILITY. CRIMINAL LAW EVIDENCE

Citation: R v HMB [2000] NSWCCA 554
Court: NSW Court of Criminal Appeal
Date: 4 July 2000
Judge(s): Meagher JA, Sperling J, Adams J

Background

The appellant was convicted in the District Court of robbery with violence following a violent incident at a service station in East Nowra in the early hours of 5 July 1998. Three persons were involved in the robbery: a larger male who wielded an axe, a female, and a shorter male. The console operator, the key Crown witness, was assaulted during the robbery and activated a panic alarm.

The two taller assailants were apprehended near the scene shortly after the offence. The critical issue at trial was whether the shorter male was the appellant. The only usable evidence on that question was the eyewitness account of the console operator, as the surveillance footage was of insufficient quality to identify anyone.

Approximately sixteen weeks after the robbery, the console operator was shown a video parade containing eleven photographs. He immediately identified photograph number six as the shorter male, stated "That's definitely him," and expressed complete certainty. That photograph was of the appellant, who had been arrested on 2 October 1998.

  • Whether the photographic identification evidence was admissible, given the sixteen-week delay between the offence and the identification
  • Whether the trial judge erred in failing to withdraw the identification evidence from the jury
  • Whether the trial judge's directions to the jury on the dangers and difficulties of identification evidence were adequate
  • Whether the trial judge erred in not separately directing the jury that honest witnesses can make mistaken identifications

Decision

The Court rejected the argument that the sixteen-week time lapse between the offence and the photographic identification rendered the evidence inadmissible or unfair. Meagher JA noted that while a shorter interval would have been preferable, the lapse did not undermine the definitiveness of the identification. The Court pointed to a prior decision where a similar or greater period had elapsed without vitiating the identification process.

On the three opportunities the console operator had to observe the shorter male, the Court acknowledged that his account of the first opportunity was unsatisfactory and appeared to involve a mistake. However, the Court found no reason to reject the identifications arising from the second and third occasions, during which the witness's attention was clearly focused. The trial judge had also been impressed by the witness's demeanour, particularly his willingness to give evidence that was unfavourable to the Crown's case where appropriate.

Regarding jury directions, the Court found that the trial judge had clearly explained to the jury the difficulties and risks associated with photographic identification evidence. The directions were considered adequate, and there was no basis to conclude the jury had misunderstood the warnings given.

On the final ground, that the trial judge should have separately directed the jury that honest witnesses can make mistakes, the Court found this criticism difficult to sustain. All parties at trial had agreed the witness was honest, and the trial judge's observation that the inaccuracy in the first opportunity was an honest mistake was consistent with the common position of both sides. No error was established on this point.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • A sixteen-week delay between a criminal offence and a photographic identification does not automatically render that identification evidence inadmissible or unfair, provided the identification itself remains clear and definitive.
  • Where a witness gives a flawed account of one opportunity to observe an offender, that does not necessarily discredit separate and distinct identification opportunities arising from the same incident.
  • Adequate jury directions on identification evidence must clearly communicate the difficulties and risks of photographic identification; the Court of Criminal Appeal confirmed the directions given here met that standard.
  • In dismissing the appeal, the Court reaffirmed that the trial judge's assessment of a witness's demeanour and credibility is a relevant consideration when determining whether identification evidence should be left with the jury.
  • No separate direction that honest witnesses can make mistakes was required where all parties had already conceded the witness's honesty and the trial judge had addressed the issue consistently with that concession.

Legislation and Cases Referenced

Cases:
- R v Maklouf [1999] NSWCCA 94 (23 June 1999, revised 12 August 1999)

Legislation: No specific legislation was cited in the judgment.