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Court of Criminal Appeal 7 December 2001

REGINA v BEATTIE

[2001] NSWCCA 502

Also reported as 127 A Crim R 250
Public order & justice offences
ATTEMPTED ESCAPE APPEAL AGAINST CONVICTION CIRCUMSTANTIAL EVIDENCE VIDEO TAPE MISSING SINCE TRIAL NEW TRIAL ORDERED. (ND)

Citation: Regina v Beattie [2001] NSWCCA 502
Court: New South Wales Court of Criminal Appeal
Date: 7 December 2001
Judges: Mason P, Sully J, Levine J

Background

The appellant was convicted in the District Court of attempted escape from Tamworth Correctional Centre on 22 March 1999. At approximately 7am that morning, prison officers discovered a rope over the eastern perimeter wall, entangled in razor wire, with a ladder tied to its far end. The central question at trial was whether the appellant was the prisoner captured on the gaol's security video attempting to escape.

The Crown's case rested on two broad foundations. First, circumstantial evidence pointed to the appellant, including the presence of an electrical flex cord matching a fan belonging to him and evidence that only two prisoners, the appellant and a fellow prisoner named McCreath, were out of their cells at the relevant time. Second, and critically, three prison officers testified that they had identified the appellant from the security video footage, which they reviewed on the morning of the incident.

The security video consisted of a series of still photographs taken four seconds apart rather than continuous moving footage. The quality of the footage as played during the trial differed from what the officers had viewed at the prison on the day of the incident, apparently because a different VCR was used. The identification evidence became the focal point of the appeal.

  • Whether the evidence of the three prison officers identifying the appellant from the security video was admissible following the High Court's decision in Mundarra Doolan Smith v The Queen [2001] HCA 50
  • Whether the officers were in any better position than the jury to make an identification from the footage, given the poor quality of the video
  • Whether, in the absence of the security tape (which had gone missing after trial), the Court of Criminal Appeal could properly assess the critical evidentiary question
  • Whether the Crown could rely on the proviso to save the conviction despite the problems with the identification evidence

Decision

The Court of Criminal Appeal allowed the appeal, with Mason P delivering the leading judgment and Sully and Levine JJ agreeing. The central difficulty was the application of the High Court's ruling in Smith, decided shortly before this appeal was heard. That decision established that evidence from witnesses identifying a suspect from security camera footage is irrelevant and therefore inadmissible if, at the time of giving evidence, those witnesses are in no better position than the jury to make the comparison.

The Crown conceded that the evidence of two of the three officers, Norton and Solomons, was indistinguishable from the evidence held inadmissible in Smith. This concession alone was sufficient to undermine the conviction. However, the position regarding the third officer, Bennett, could not be fully assessed because the security tape had gone missing after trial. It had been admitted into evidence, returned to Corrective Services following the lodging of the appeal, and could not be located. Without the tape, the Court of Criminal Appeal could not determine whether any of the officers held a genuine positional advantage over the jury when making their identifications.

The trial judge had directed himself by reference to an earlier Court of Criminal Appeal decision in R v Gardner, which pre-dated the High Court's ruling in Smith. He could not have been expected to anticipate the principles subsequently articulated by the High Court, and the Court of Criminal Appeal did not criticise his approach. The Crown's argument that the proviso should save the conviction was rejected, given the central importance the identification evidence played throughout the trial.

The Court declined to enter the additional legal questions raised about the opinion rule under section 76 of the Evidence Act, or the discretionary exclusion questions under sections 135 and 137, noting that the missing tape and the Smith concession were sufficient grounds to set the conviction aside.

Orders Made

  • Appeal allowed
  • Conviction and sentence set aside
  • New trial ordered

Key Takeaways

  • Following Mundarra Doolan Smith v The Queen [2001] HCA 50, identification evidence from witnesses viewing security footage is inadmissible where those witnesses hold no positional advantage over the jury in making the comparison, regardless of prior acquaintance with the accused.
  • The loss of a trial exhibit can have serious consequences on appeal: the Court of Criminal Appeal was unable to assess the critical evidentiary issue concerning the third officer because the security tape could not be located after being returned to Corrective Services post-trial.
  • A Crown concession that two of three identification witnesses gave evidence indistinguishable from that held inadmissible in Smith was sufficient to warrant setting aside the conviction.
  • The proviso cannot rescue a conviction where identification evidence was central to the way the trial was conducted and that evidence is subsequently found to be legally problematic.
  • Where the High Court hands down a significant ruling during the pendency of an appeal, trial courts cannot be criticised for failing to anticipate it, but convictions may still be vulnerable if the earlier approach can no longer be sustained.

Legislation and Cases Referenced

Legislation:
- Evidence Act (NSW), ss 76, 135, 137

Cases:
- Mundarra Doolan Smith v The Queen [2001] HCA 50
- R v Gardner [2001] NSWCCA 381