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Court of Criminal Appeal 4 November 2005

Drollett v R

[2005] NSWCCA 356

Assault & violence
APPEAL AGAINST CONVICTION MALICIOUS WOUNDING IN COMPANY WHETHER EVIDENCE RELEVANT EVIDENCE OF FACT EVIDENCE OF OPINION INTERPRETATION OF VIDEO EVIDENCE

Citation: Drollett v R [2005] NSWCCA 356
Court: NSW Court of Criminal Appeal
Date: 4 November 2005
Judge(s): McClellan CJ at CL, Simpson J, Rothman J

Background

The appellant was a prisoner at Goulburn Correctional Centre when a fellow inmate was attacked and wounded in the prison yard in July 2002. Eleven prisoners were initially charged with malicious wounding in company. Ten accepted reduced charges; the appellant alone proceeded to trial and was convicted by a jury.

The yard was under continuous camera surveillance during the attack. The footage consisted of still images captured at one-second intervals, producing a jerky, highly indistinct result when played back. No faces were visible on the recording. A post-incident muster was also video-recorded, in which the appellant was clearly identifiable by sight and voice.

The sole issue at trial was whether the appellant had participated in the attack. The Crown sought to establish his involvement partly through the evidence of a correctional officer, Mr Stephens, who purported to identify the appellant from the surveillance footage.

  • Whether the evidence of Mr Stephens, identifying the appellant from surveillance footage of events he had not personally witnessed, was properly admitted at trial
  • Whether that identification evidence constituted evidence of fact or inadmissible opinion evidence under Part 3.3 of the Evidence Act 1995
  • Whether Mr Stephens qualified as an "ad hoc expert" whose identification from the footage could be admitted under s 79 of the Evidence Act
  • Whether a miscarriage of justice arose from the Crown tendering a document, later shown to be mistaken, that was said to relate to clothing worn by the appellant

Decision

The central ground of appeal concerned Mr Stephens' identification evidence. Earlier in the proceedings, the trial judge had excluded similar evidence from a different correctional officer (Mr St Vincent) on the basis that it constituted opinion evidence inadmissible under Part 3.3 of the Evidence Act, and that its probative value was outweighed by the danger of unfair prejudice under s 137. That officer had identified prisoners by cross-referencing clothing visible in the muster footage with clothing visible in the indistinct surveillance footage, a process of deduction rather than direct recognition.

The Court of Criminal Appeal found that Mr Stephens' evidence raised the same fundamental difficulty. Critically, he had seen the appellant face-on after the incident but could not identify him from the front-view footage. He had not seen the appellant from the rear during the incident, yet purported to identify him from rear-view footage. His identification was based on deductions from the appellant's clothing, which he had observed shortly before the attack. The court held this was not evidence of fact but opinion evidence, and was inadmissible under Part 3.3 of the Evidence Act.

The Court also rejected any characterisation of Mr Stephens as a qualified ad hoc expert. To attract the exception under s 79, a witness must have specialised knowledge based on training, study, or experience. Mr Stephens' degree of familiarity with the appellant fell well short of that threshold, and the court drew a clear distinction between his evidence and the evidence found admissible in the contemporaneous decision of R v Marsh, where the identifier was the accused's own sister with a deep, longstanding knowledge of him.

Because the conviction was quashed on the first ground, the court did not find it necessary to resolve the second ground concerning the clothing document, on the basis that the same error would not recur at a new trial. The sentence appeal also did not require determination.

Orders Made

  • Appeal allowed
  • Conviction quashed
  • New trial ordered

Key Takeaways

  • A correctional officer who deduces identity from clothing comparisons between surveillance footage and other video, without having directly observed the accused during the relevant events, gives opinion evidence rather than evidence of fact under the Evidence Act 1995.
  • Under Part 3.3 of the Evidence Act, opinion evidence is inadmissible unless it satisfies specific exceptions, including the "ad hoc expert" exception in s 79, which requires specialised knowledge based on training, study, or experience.
  • The degree of familiarity required to give admissible identification evidence from surveillance footage is a significant threshold: the Court of Criminal Appeal distinguished the limited acquaintance of a prison officer with an inmate from the deep personal familiarity of a sibling, the latter having been found sufficient in R v Marsh [2005] NSWCCA 331.
  • Where a witness cannot identify an accused from front-view footage despite having seen them face-on, and has never seen the accused from the rear, a purported identification from rear-view footage based on clothing inference does not cross the threshold into factual evidence.
  • Admitting identification evidence of this nature, when the trial judge had already excluded comparable evidence from another witness on the same basis, constituted an error on a question of law sufficient to quash the conviction under s 6 of the Criminal Appeal Act 1912.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6
- Evidence Act 1995 (NSW), Part 3.3; ss 56, 76, 78, 79, 137

Cases
- Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; 164 CLR 180
- Eastman v The Queen (1997) 76 FCR 9
- R v Basha (1989) 39 A Crim R 337
- R v Cassar; R v Sleiman [1999] NSWSC 436
- R v Leung [1999] NSWCCA 287; 47 NSWLR 405
- R v Marsh [2005] NSWCCA 331 (unreported, 20 September 2005)
- R v Menzies [1982] 1 NZLR 40
- R v Smith (Mundarra) [1999] NSWCCA 317; 47 NSWLR 419
- Smith v The Queen [2001] HCA 50; 206 CLR 650