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Court of Criminal Appeal 25 August 2005

R v G

[2005] NSWCCA 291

Sexual offences
CRIMINAL LAW: ACCUSED A CHILD

Citation: R v G [2005] NSWCCA 291
Court: NSW Court of Criminal Appeal
Date: 25 August 2005
Judge(s): Grove J, Hidden J, Bell J

Background

The respondent, a 17-year-old, faced retrial in the District Court on charges of detaining for advantage and three counts of aggravated sexual assault. His earlier conviction had been quashed by the Court of Criminal Appeal and a new trial ordered. The complainant's identification of him as one of the offenders was the centrepiece of the Crown case.

During the execution of a search warrant at the respondent's home, police asked him to stand against an exterior wall to be photographed. He complied without protest. That photograph was later included in a photographic array from which the complainant identified him. The respondent was not cautioned again before the photograph was taken, was not told the purpose of the photograph, and his older brother (present elsewhere on the premises as the required adult support) was not in the immediate vicinity.

At a pre-trial voir dire, the District Court judge rejected the photograph in evidence. The Crown appealed that ruling under s 5F(3A) of the Criminal Appeal Act 1912, on the basis that exclusion of the photograph would eliminate or substantially weaken the Crown case.

  • Whether the respondent's act of posing for the photograph constituted an "admission" or the giving of "information" within the meaning of s 13 of the Children (Criminal Proceedings) Act 1987, s 90 of the Evidence Act 1995, and s 281 of the Criminal Procedure Act 1986
  • Whether Part 10A of the Crimes Act 1900 and its associated Regulation governed the taking of the photograph, and whether the relevant procedural requirements were satisfied
  • Whether the trial judge's discretion under s 138 of the Evidence Act to exclude improperly or illegally obtained evidence miscarried by reason of extraneous considerations being taken into account
  • Whether the separate ruling rejecting evidence of the respondent loosening his ponytail before the photograph was taken (as consciousness of guilt) was of sufficient significance to enliven the Court's jurisdiction under s 5F(3A)

Decision

The Court of Criminal Appeal held that the trial judge erred in treating the respondent's compliance with the request to be photographed as an "admission" or the giving of "information" under the relevant statutory provisions. Drawing on authorities including R v Carr, the Court reasoned that providing one's physical likeness for a photograph is analogous to providing fingerprints, a non-communicative act that does not attract the protections attaching to verbal statements or confessions. Posing for a photograph does not, without more, constitute the conveying of a statement of fact that could operate as an admission.

Because the act of being photographed fell outside the concept of an admission, the trial judge's reliance on s 13 of the Children (Criminal Proceedings) Act, s 90 of the Evidence Act, and s 281 of the Criminal Procedure Act as bases for rejection was misplaced. Those provisions govern communicative conduct, not the physical act of standing for a photograph.

The Court accepted, however, that the taking of the photograph may have been governed by Part 10A of the Crimes Act and the Crimes (Detention After Arrest) Regulation, and that there were identifiable breaches of those requirements, including the absence of an electronic record of the conversation that preceded the photograph. However, the trial judge's exercise of the s 138 discretion to exclude improperly obtained evidence miscarried because he took into account the erroneous findings about admissions under the other provisions. That infected reasoning meant the discretion had not been properly exercised, and the Court was not prepared to conduct that exercise itself on a Crown appeal of this kind. The matter was therefore remitted to the District Court for reconsideration.

On the separate question of the respondent loosening his ponytail before being photographed (relied on by the Crown as evidence of consciousness of guilt), the Court declined to intervene. The trial judge had rejected that evidence under s 137 of the Evidence Act, and the Court found the ruling was not of sufficient significance to the Crown case to engage its jurisdiction under s 5F(3A).

Orders Made

  • The appeal is allowed.
  • The ruling of the trial judge rejecting the admission of the photograph taken during the execution of the search warrant is set aside.
  • The matter is remitted to the District Court.

Key Takeaways

  • Physically complying with a request to be photographed by police is not, of itself, the making of an "admission" or the giving of "information" within the meaning of s 13 of the Children (Criminal Proceedings) Act 1987, s 90 of the Evidence Act 1995, or s 281 of the Criminal Procedure Act 1986. The act is non-communicative and does not carry the self-incriminatory character of a verbal statement.
  • A trial judge's discretion under s 138 of the Evidence Act can miscarry where the weighing exercise is infected by legally erroneous findings on other grounds. Where that occurs, the appellate court may set aside the ruling rather than substitute its own.
  • The Court of Criminal Appeal confirmed it will not make a fresh evidentiary ruling in favour of the Crown on a s 5F(3A) appeal in place of a ruling that has miscarried. Remission to the trial court is the appropriate course.
  • Part 10A of the Crimes Act and the Crimes (Detention After Arrest) Regulation may apply to the police photographing of a suspect even outside a formal custody context, and procedural compliance with those provisions remains relevant to any s 138 analysis.
  • A collateral ruling (here, the exclusion of consciousness-of-guilt evidence under s 137) will not independently enliven the Court of Criminal Appeal's jurisdiction under s 5F(3A) unless it is of sufficient significance to the Crown case in its own right.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F(3A), s 5F(5)
- Children (Criminal Proceedings) Act 1987 (NSW), s 13
- Evidence Act 1995 (NSW), ss 90, 137, 138
- Criminal Procedure Act 1986 (NSW), s 281
- Crimes Act 1900 (NSW), ss 353A(3), Part 10A
- Crimes (Detention After Arrest) Regulation
- Crimes (Forensic Procedures) Act 2000 (NSW)

Cases
- R v Chami & Ors [2004] NSWCCA 36
- R v Carr [1972] 1 NSWLR 608
- The Queen v Ireland (1971-72) 126 CLR 321
- Fullerton v Commissioner of Police [1984] 1 NSWLR 159
- R v Horton (1998) 45 NSWLR 426
- Edwards v The Queen (1993) 178 CLR 193
- A (a Child) (2000) 115 ACrim R 1
- R v Cook [2004] NSWCCA 52
- R v Knight [2001] NSWCCA 114
- R v Rondo [2001] 126 A Crim R 562
- R v Sophear Em [2003] NSWCCA 374