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Court of Criminal Appeal 14 September 2001

R v McDonald

[2001] NSWCCA 363

Sexual offences
CRIMINAL LAW NO QUESTION OF PRINCIPLE

Citation: R v McDonald [2001] NSWCCA 363
Court: NSW Court of Criminal Appeal
Date: 14 September 2001
Judge(s): Beazley JA, Wood CJ at CL, Sperling J

Background

The appellant was convicted in the District Court on two counts of aggravated sexual intercourse without consent, following a trial before Bell DCJ and a jury. The offences were alleged to have occurred in October 1997 at a flat in Taree, with the aggravating factor being a threat with a knife. The appellant denied ever having been to the flat or having met the complainant, claiming he was not in Taree in October 1997.

The sole live issue at trial was identity. The complainant, her flatmate Ms Goodridge, and a friend Ms Townsend all gave identification evidence. The complainant had not reported the matter to police until June 1998, some eight months after the alleged offences, meaning no timely formal identification procedures were possible.

Identification parade steps were not taken until the trial had already commenced. The Crown, unable to secure the appellant's consent to participate in a parade, instead conducted a photo identification procedure with Ms Goodridge just two days before she was called to give evidence. Ms Goodridge selected the appellant's photograph and gave evidence of that selection at trial.

  • Whether the trial judge erred in permitting the complainant to identify the appellant in the courtroom
  • Whether the trial judge erred in admitting Ms Goodridge's photo identification evidence, having regard to section 137 of the Evidence Act 1995
  • Whether the trial judge gave adequate warnings to the jury about the dangers of the complainant's in-court identification
  • Whether the trial judge gave adequate warnings about the dangers of Ms Goodridge's photo identification
  • Whether the directions on the complainant's delay in reporting to police were adequate
  • Whether evidence from Ms Neal was admitted contrary to section 157 of the Criminal Procedure Act 1986

Decision

The Court of Criminal Appeal allowed the appeal on Ground 2, concerning the admission of Ms Goodridge's photo identification evidence. Section 137 of the Evidence Act 1995 requires a court to exclude evidence in a criminal proceeding if its probative value is outweighed by the danger of unfair prejudice to the defendant. The Court found that the trial judge had not performed this balancing exercise in a logically sound manner.

In particular, the trial judge failed to take into account considerations that bore directly on the probative value of the evidence. These included the circumstances under which the photo identification was conducted, most notably that it occurred approximately three years after the events in question. By omitting these relevant considerations, the trial judge was unable to properly evaluate whether there was a risk that the jury would give the evidence more weight than it deserved.

The Court held that this error in reasoning may have resulted in evidence being admitted that should have been excluded. Because the identification of the appellant was the only real issue at trial, Ms Goodridge's evidence went to corroborate the complainant's identification evidence and could have affected the outcome. The Court concluded that the appellant had lost a real chance of acquittal, which constituted a miscarriage of justice.

The Court expressed serious misgivings about Grounds 3 and 4, noting the absence of any jury warning about the hazards of dock identification and photo identification respectively. However, given the appeal was clearly made out on Ground 2, the Court declined to express any final opinion on those remaining grounds.

Orders Made

  • Appeal allowed
  • Conviction quashed
  • New trial ordered

Key Takeaways

  • Under section 137 of the Evidence Act 1995, a court must conduct a genuine balancing exercise between probative value and the danger of unfair prejudice; an error of reasoning in performing that exercise can constitute a ground for appeal.
  • The Court of Criminal Appeal confirmed that failing to consider the circumstances affecting the reliability of identification evidence, such as the significant passage of time since the relevant events, is a material error in the section 137 analysis.
  • Where identification is the only live issue at trial, improperly admitted identification evidence capable of corroborating a complainant's account may be sufficient to establish a miscarriage of justice.
  • A miscarriage of justice does not require proof that the wrongly admitted evidence determined the verdict; it is sufficient that the accused lost a real chance of acquittal.
  • The Court left unresolved several other grounds of appeal, including the adequacy of jury warnings about dock identification and photo identification dangers, declining to express any opinion on them once the appeal was secured on a separate ground.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), sections 115 and 137
- Criminal Procedure Act 1986 (NSW), section 157

Cases: No cases were cited in the portions of the judgment provided.