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Court of Criminal Appeal 20 September 2005

Marsh v R

[2005] NSWCCA 331

Assault & violenceTheft & property
CRIMINAL LAW ADMISSIBILITY OF EVIDENCE ARMED ROBBERY OF BANK PHOTO DEVELOPED PUBLISHED IN NEWSPAPER WHETHER ADMISSIBLE.

Citation: R v Marsh [2005] NSWCCA 331
Court: NSW Court of Criminal Appeal
Date: 20 September 2005
Judge(s): Studdert J (primary judgment); Kirby J and Howie J (agreeing)

Background

The appellant was convicted by a District Court jury of armed robbery at a bank in New Lambton on 21 June 2002, and sentenced to six years' imprisonment with a four-year non-parole period. Security cameras captured images of the robber at the counter, leaving the counter, and exiting through the front doors. One of those images was later provided to the media by police and published in the Newcastle Herald.

The appellant's sister saw the newspaper photograph, immediately believed she recognised her brother, and contacted police the following day. She gave evidence at trial that she identified the person in the photograph by his face, stature, stance, and a denim jacket she associated with him. Notably, four witnesses to the robbery who participated in photo identification parades did not select the appellant.

The Crown conceded that the sister's recognition evidence was critical to the conviction and that, without it, there was insufficient evidence to support a guilty verdict. The appellant challenged both the admission of that evidence and the admission of the CCTV photographs themselves.

  • Whether the sister's recognition evidence was admissible, particularly given the High Court's decision in Smith v The Queen (2001) 206 CLR 650, which excluded similar identification evidence by police officers
  • Whether the CCTV security photographs were properly admitted into evidence
  • Whether, even if the photographs were admissible, their probative value was outweighed by the danger of unfair prejudice under s 137 of the Evidence Act, given the risk that the jury might give unwarranted weight to their own comparison exercise

Decision

Ground 1: The sister's recognition evidence

The court distinguished the appellant's case from Smith v The Queen. In Smith, police officers who had prior dealings with the accused gave evidence identifying him from security footage. The High Court excluded that evidence as either irrelevant or inadmissible opinion. Here, however, the sister had known the appellant for most of her life, had seen him regularly in the years before the robbery, and last saw him only months before the offence. Her recognition was grounded in long-term personal familiarity, not a limited prior acquaintance or professional association.

The court held that this personal familiarity with the appellant's appearance gave her evidence a proper basis for admissibility. The matters she relied upon, including his face, stature, stance, and characteristic jacket, were within her direct knowledge from years of family contact. The trial judge's decision to admit the evidence on the voir dire was upheld.

Ground 2: The CCTV photographs

The court found no error in admitting the CCTV photographs. The jury was entitled to compare the appellant, who gave evidence at trial, with the person depicted in the photographs taken during the offence. This is a commonplace exercise, distinct from asking a witness to recall a person from memory. The trial judge gave the jury an appropriate direction about the caution required when making such comparisons.

The argument that the photographs should have been excluded under s 137 of the Evidence Act because of the risk that the jury might give unwarranted weight to the comparison process was rejected. The probative value of the photographs warranted their admission and was not outweighed by any danger of unfair prejudice.

Orders Made

  • Appeal dismissed

Key Takeaways

  • Recognition evidence from a witness with a long-standing personal relationship with the accused is in a materially different position from identification evidence given by police officers with only limited prior dealings, as the Court of Criminal Appeal distinguished Smith v The Queen on that basis.
  • A close family member's recognition of a person in a security photograph, based on years of personal familiarity with the accused's face, stature, stance, and clothing, can be admissible at trial.
  • Where an accused gives evidence in person, the jury is entitled to compare their own observations of the accused with CCTV footage of the offender; this is a different process from asking a witness to identify a person from memory.
  • Under s 137 of the Evidence Act, CCTV photographs captured during the commission of an offence are not excluded simply because a recognition witness has also identified the person depicted; their probative value must be assessed against any danger of unfair prejudice.
  • In dismissing the appeal, the court confirmed that the Crown's concession as to the critical nature of evidence does not, of itself, render that evidence inadmissible.

Legislation and Cases Referenced

Legislation
- Evidence Act (NSW), ss 76, 79, 137

Cases
- Smith v The Queen (2001) 206 CLR 650
- R v Palmer (1981) 1 NSWLR 209
- R v Smith (1998) 47 NSWLR 419
- R v Leung (1999) 47 NSWLR 405
- R v Kirby [2000] NSWCCA 330
- Reg v Griffith (1995) 79 A Crim R 725
- R v Goodall (1982) VR 33
- R v Smith (1987) VR 907
- Reg v Browne & Angus (1951) 99 CCC 141
- Reg v Leaney & Rawlinson (1988) 38 CCC (3d) 263
- Rix v DPP (unreported, NSWCCA, 29 June 1989)