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Court of Criminal Appeal 11 October 2001

R v FISHER

[2001] NSWCCA 380

Assault & violence
CRIMINAL LAW AND PROCEDURE ADMISSION OF EVIDENCE ACCUSED IDENTIFIED IN LINE WHERE NONE OF THE OTHER MEN IN THE LINE S 137 EVIDENCE ACT 1995.

Citation: R v Fisher [2001] NSWCCA 380
Court: NSW Court of Criminal Appeal
Date: 11 October 2001
Judge(s): Sheller JA; Sully J; Hulme J

Background

The appellant was convicted in the District Court of assault with intent to rob, following an incident in Orange on 21 March 1999. The alleged offence involved a man grabbing the arm of a woman who had just withdrawn cash from an ATM. The central question at trial was whether the appellant was that man.

Three days after the incident, police conducted an identification parade. Two witnesses, the victim's daughter and a bystander named Darren Pritchard, identified the appellant from the parade. A third strand of evidence connected the appellant to a woman several witnesses claimed to have seen with the offender shortly before the assault, and the appellant admitted to being in a relationship with that woman.

At trial, the appellant objected to the admission of the identification parade evidence under s 137 of the Evidence Act 1995. The objection rested on the fact that the appellant was the only person in the six-person line-up who matched witness descriptions of the offender as a man of Aboriginal appearance with shoulder-length hair. The trial judge admitted the evidence, the jury convicted, and the appellant appealed.

  • Whether the trial judge erred in admitting the identification parade evidence under s 137 of the Evidence Act 1995, given that no other participant in the parade shared the appellant's distinctive appearance
  • Whether the probative value of the identification evidence was outweighed by the danger of unfair prejudice to the appellant
  • Whether the trial judge erred in failing to direct the jury to consider the identification evidence separately from the evidence connecting the appellant to the woman seen with the offender

Decision

The Court of Criminal Appeal held unanimously that the identification parade evidence should have been excluded under s 137 of the Evidence Act 1995. The court noted that the relevant prejudice under s 137 is not simply that evidence tends to establish the Crown's case, but rather the risk that evidence will be misused by the jury in some unfair way.

On the facts, none of the five other men in the parade shared the appellant's appearance as a person of Aboriginal descent with shoulder-length hair. The victim's daughter acknowledged in voir dire (a pre-trial hearing to determine admissibility) that she had asked another parade participant whether he had recently had a haircut, and relied partly on the appellant's long hair in making her identification. This demonstrated that the parade was not a genuine test of recognition, because witnesses were in effect guided to select the appellant as the only person fitting the description they held.

The inherent tendency of witnesses to pick the sole person matching a distinctive description reduced the probative value of the identification and simultaneously increased the danger of unfair prejudice. Sheller JA, with Sully J and Hulme J agreeing, concluded that admitting this evidence resulted in a substantial miscarriage of justice.

On the separate ground concerning jury directions, the court found no error. The jury was entitled to consider the identification evidence together with the evidence of the appellant's association with the woman seen with the offender. There was no requirement for the trial judge to direct the jury to treat the two strands of evidence in isolation.

Orders Made

  • Appeal allowed
  • Conviction quashed
  • New trial ordered

Key Takeaways

  • Under s 137 of the Evidence Act 1995, a court must exclude prosecution evidence where its probative value is outweighed by the danger of unfair prejudice; that prejudice refers to a real risk the jury will misuse the evidence, not merely that it assists the Crown.
  • An identification parade loses significant probative value, and becomes a source of unfair prejudice, where the accused is the only participant who matches the description witnesses hold of the offender.
  • The Court of Criminal Appeal confirmed that the operative unfairness in a flawed parade arises from the structural inevitability of the selection: witnesses are not truly recognising a person, but selecting the only candidate who fits their recollection.
  • No error was established in the trial judge's refusal to direct the jury to consider identification evidence separately from other circumstantial evidence connecting the accused to the offence; those strands of evidence were properly considered together.
  • A conviction following the wrongful admission of flawed identification evidence will constitute a substantial miscarriage of justice warranting quashing and retrial.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 137

Cases
- R v BD (1997) 94 A Crim R 131
- Papakosmas v The Queen (1999) 196 CLR 297
- Alexander v The Queen (1981) 145 CLR 395