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Court of Criminal Appeal 25 September 2001

R v GARDNER

[2001] NSWCCA 381

Also reported as 123 A Crim R 439
Theft & property
CRIMINAL PRACTICE AND PROCEDURE ADMISSION OF EVIDENCE

Citation: Gardner v R [2001] NSWCCA 381
Court: NSW Court of Criminal Appeal
Date: 25 September 2001
Judge(s): Sheller JA; Sully J; Hulme J

Background

The appellant was convicted in the District Court of four counts of robbery at a Westpac Bank branch. The Crown case relied substantially on eight photographs taken by a bank security camera at the time of the offence. The appellant gave evidence of an alibi and denied any involvement.

Three police officers, each of whom claimed prior acquaintance with the appellant, gave evidence that they had separately identified the appellant as the person depicted in the security photographs. The appellant objected to this evidence at trial, but the trial judge admitted it following a voir dire (a preliminary hearing to test admissibility).

Two additional issues arose during the trial. The Crown Prosecutor, in summing up, commented on the failure of the appellant's mother to give evidence, in a manner that contravened the Evidence Act. Additionally, at the invitation of his own counsel, the appellant stood before the jury and displayed the same right profile shown in the security photographs, for the purposes of comparison.

  • Whether the police officers' recognition evidence (that they identified the appellant as the person in the security photographs) was relevant under s 55 of the Evidence Act 1995, in light of the High Court's decision in Smith v The Queen (2001) HCA 50
  • Whether the trial judge adequately corrected the Crown Prosecutor's improper comment on the appellant's mother's failure to give evidence, which contravened s 20(3) of the Evidence Act 1995
  • Whether the procedure of having the appellant display his profile to the jury, mirroring the angle shown in the security photographs, contravened s 137 of the Evidence Act 1995 by creating unfair prejudice outweighing its probative value

Decision

Police recognition evidence. The court applied the High Court's majority decision in Smith v The Queen, handed down shortly before this appeal was heard. In that case, the High Court held that police officers who identified an accused from photographs had no basis for that identification beyond their prior knowledge of the accused's appearance and what was visible in the photographs. The jury was equally capable of making that comparison. Accordingly, the officers' evidence could not rationally affect the jury's assessment of whether the appellant was the person depicted, and so failed the relevance test in s 55 of the Evidence Act. The court held the same reasoning applied here, and the police recognition evidence should not have been admitted.

Prosecutorial comment on absent witness. The Crown Prosecutor's remarks about the failure of the appellant's mother to give evidence contravened s 20(3) of the Evidence Act, which prohibits comment on the failure of a defendant's spouse or certain family members to give evidence. However, the court found the trial judge's directions to the jury in summing up adequately addressed and corrected the error. This ground of appeal therefore failed.

In-court profile comparison procedure. The procedure of having the appellant display his profile to the jury was challenged on the basis that it risked unfairly reinforcing the Crown's identification case. The court rejected this argument, finding the comparison had obvious probative value. The risk that the jury would place unwarranted weight on the procedure, or reason improperly from it, was not established. This ground of appeal also failed.

Overall outcome. The appeal succeeded on the first ground alone. The admission of the police recognition evidence was an error that could not be cured, and the conviction was quashed with a new trial ordered.

Orders Made

  • Appeal allowed
  • Verdict quashed
  • New trial ordered

Key Takeaways

  • Following Smith v The Queen (2001) HCA 50, police officer evidence identifying an accused from security photographs is irrelevant under s 55 of the Evidence Act 1995 where the officers have no basis for identification beyond prior knowledge of the accused's appearance and what the photographs themselves reveal, placing them in no better position than the jury.
  • Irrelevant evidence must be excluded; there is no discretion to admit it, and a failure to object to evidence as irrelevant at trial does not preclude the issue being raised on appeal.
  • A prosecutorial comment that contravenes s 20(3) of the Evidence Act (commenting on the failure of a defendant's family member to give evidence) will not necessarily vitiate a conviction if the trial judge adequately corrects the error in summing up to the jury.
  • Under s 137 of the Evidence Act, a procedure requiring an accused to display a physical characteristic for jury comparison does not attract exclusion where its probative value clearly outweighs any risk of unfair prejudice, particularly where the jury was already required to scrutinise relevant images closely.
  • The Court of Criminal Appeal confirmed that the High Court's ruling in Smith v The Queen applies directly to recognition evidence admitted in reliance on the earlier NSW Court of Criminal Appeal decision in R v Smith (1999) 47 NSWLR 419, which the High Court effectively overruled.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW): ss 20(3), 55, 76, 137

Cases
- Smith v The Queen (2001) HCA 50
- R v Smith (1999) 47 NSWLR 419
- Alexander v The Queen (1981) 145 CLR 395
- R v Goodall [1982] VR 33
- R v Palmer [1981] 1 NSWLR 209
- Morrison v The Queen (unreported) NSWCCA, 30 November 1995
- R v Tipene (unreported) New Zealand CA, 30 May 2001
- R v Griffith (1995) 79 A Crim R 125
- R v Cook (1998) 130 NTR 28
- R v Kirby [2000] NSWCCA 330
- Bulejcik (1995) 185 CLR 375
- Sorby (1983) 153 CLR 281
- Lockyer (1996) 89 A Crim R 457
- Singh-Bal (1997) 92 A Crim R 397