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Court of Criminal Appeal 3 June 2002

REGINA v. ELDRIDGE

[2002] NSWCCA 205

Assault & violenceTheft & property
CRIMINAL LAW APPEAL ADMISSIBILITY OF EVIDENCE OF SIMILARITY RELEVANCE PREJUDICE VERDICTS NOT UNREASONABLE.

Citation: [2002] NSWCCA 205
Court: Court of Criminal Appeal, New South Wales
Date: 3 June 2002
Judge(s): Heydon JA, Greg James J, Kirby J

Background

The appellant was convicted in the District Court at Parramatta of robbery and assault occasioning actual bodily harm. The offences arose from an incident on 20 April 2000, in which a heavily pregnant woman had her bag snatched outside her workplace after withdrawing cash from a nearby bank. The robber punched a male colleague who attempted to intervene, causing him physical injury.

The case against the appellant rested substantially on identification evidence. One witness provided a definite photographic identification 77 days after the robbery, while the other gave a description consistent with the appellant's appearance but did not make a formal identification. The appellant's fingerprints did not match those lifted from the scene, and he had declined to participate in a line-up.

The appellant appealed his convictions on three grounds, all centring on the reliability and handling of the identification evidence at trial.

  • Whether the trial judge erred in admitting the identification evidence of one witness, including evidence of resemblance or similarity
  • Whether the jury directions on identification evidence were adequate, particularly regarding the requirements under s 116 and s 165(1)(b) of the Evidence Act 1995
  • Whether the guilty verdicts were unreasonable having regard to the totality of the evidence, including the alleged weaknesses in the identification

Decision

The Court dismissed the admissibility challenge to the identification evidence. Greg James J held that the evidence of similarity or resemblance observed by the second witness was properly admitted as relevant, and that its potential for prejudice did not outweigh its probative value. The trial judge had exercised the relevant discretion appropriately.

On the directions ground, the Court found the trial judge's summing-up adequately addressed the warnings required for identification evidence under the Evidence Act. The Court noted that trial counsel had actively sought redirections on other matters, but had not pressed the particular complaint now raised on appeal, suggesting it was not regarded as significant at the time. No deficiency in the directions was established.

The third ground, that the verdict was unreasonable, was rejected. The Court accepted that the 77-day delay before the photographic identification was unusually long. However, it observed that a confident identification is not automatically unreliable, and that a description consistent with the appellant's appearance had been given to police within four days of the offence. The credibility and reliability of the identifying witness were properly left to the jury, who had the advantage of seeing the appellant in court.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence refused

Key Takeaways

  • The Court of Criminal Appeal confirmed that evidence of resemblance or similarity in identification cases can be admissible where its probative value is not outweighed by the risk of unfair prejudice, even where it falls short of a formal identification.
  • Under s 116 and s 165(1)(b) of the Evidence Act 1995, trial judges are required to give appropriate warnings about the limitations of identification evidence; the Court here found those obligations were discharged on the facts.
  • A definite photographic identification made 77 days after an observed event is not automatically insufficient to support a conviction, particularly where an early and consistent description was also provided to police.
  • No error was established in the trial judge's exercise of discretion to admit the contested identification evidence, nor in the adequacy of the subsequent jury directions.
  • In dismissing the unreasonable verdict ground, the Court emphasised that assessments of witness credibility and identification reliability are quintessentially matters for the jury, who can observe the accused in the courtroom.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59, 94
- Evidence Act 1995 (NSW), ss 116, 165(1)(b)

Cases
- Pitkin (1995) 69 ALJR 612
- Blick (2000) 111 A Crim R 326
- Cook (CCA, unreported, 24 August 1998)
- Fisher [2001] NSWCCA 380
- Festa (2001) 76 ALJR 291
- Barbaro (1993) 32 NSWLR 619
- Alexander (1981) 145 CLR 395
- Domican (1992) 173 CLR 555