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75
Court of Criminal Appeal 12 April 2006

Regina v Linard SHAMOUIL

[2006] NSWCCA 112

Also reported as (2006) 66 NSWLR 228
Assault & violence
CRIMINAL LAW CROWN APPEAL EXCLUSION OF EVIDENCE JURISDICTION TO HEAR APPEAL CRIMINAL APPEAL ACT 1912, S5F(3A) EVIDENCE

Citation: Regina v Linard Shamouil [2006] NSWCCA 112
Court: NSW Court of Criminal Appeal
Date: 12 April 2006
Judge(s): Spigelman CJ; Simpson J; Adams J

Background

The respondent was charged with shooting with intent to murder (and an alternative charge of malicious shooting with intent to cause grievous bodily harm) following a shooting in July 2004. The victim identified the respondent by photo-board shortly after the incident, but then provided a retraction statement roughly a month later, saying he could not identify his assailant. He maintained that position on the voir dire (the pre-trial hearing at which admissibility was argued).

The trial judge, Maguire DCJ in the District Court, excluded the photo-board identification evidence under s 137 of the Evidence Act 1995. That section requires a court in a criminal proceeding to refuse to admit prosecution evidence if its probative value is outweighed by the danger of unfair prejudice to the defendant. His Honour's reasoning drew on the reliability of the identification and the risk the jury might place undue weight on flawed evidence.

The Crown appealed under s 5F(3A) of the Criminal Appeal Act 1912, which permits the Crown to appeal an evidentiary ruling only where the exclusion eliminates or substantially weakens the prosecution case. The respondent contested both the Crown's standing to bring the appeal and the merits of the evidentiary ruling.

  • Whether the exclusion of the photo-board identification evidence "substantially weakened" the Crown case, thereby conferring jurisdiction on the Court of Criminal Appeal to hear the appeal under s 5F(3A) of the Criminal Appeal Act 1912
  • Whether reliability or credibility of evidence is relevant to the assessment of "probative value" under s 137 of the Evidence Act 1995
  • Whether the trial judge correctly identified a danger of "unfair prejudice" to the defendant sufficient to justify exclusion
  • Whether any prejudice arising from identification evidence could be addressed by a warning under s 165 of the Evidence Act 1995, and whether the trial judge was required to consider that possibility

Decision

Jurisdiction under s 5F(3A). The Court confirmed that the threshold question, whether the exclusion substantially weakened the Crown case, is assessed on the assumption that the evidence would be accepted by the jury. It is not appropriate, at the jurisdictional stage, to discount the evidence's potential impact by reference to the weight a jury might actually give it. The Court held that the exclusion of the photo-board identification did substantially weaken the Crown case, regardless of whether that discounting exercise were applied, and jurisdiction was therefore established.

Probative value and reliability. The Court held that, when assessing probative value under s 137, the evidence is to be taken as accepted. Matters of reliability or credibility are only rarely relevant to that assessment. By factoring in the credibility of the identification evidence when weighing its probative value, the trial judge fell into error. Probative value concerns the capacity of the evidence to prove a fact in issue, not whether the jury is likely to believe it.

Unfair prejudice. The Court found that the trial judge had not identified any specific respect in which the identification evidence would cause unfair prejudice to the respondent. The suggestion that the jury might give the evidence undue weight, or might speculate that the victim retracted out of fear, did not establish unfair prejudice on the facts. The retraction was equally explicable by the close-knit community connection between the victim and the respondent.

The s 165 warning. The Court observed that any dangers associated with identification evidence can ordinarily be addressed by a judicial warning under s 165 of the Evidence Act. The trial judge made no reference to that possibility. The availability of such a warning was required to be taken into account before concluding that any prejudice was "unfair." The appeal was allowed on this basis as well.

Orders Made

  • Appeal allowed
  • The judgment of Maguire DCJ of 23 November 2005 set aside

Key Takeaways

  • Under s 5F(3A) of the Criminal Appeal Act 1912, the Court of Criminal Appeal confirmed that the exclusion of evidence of genuine cogency or force will "substantially weaken" the Crown case, even where other evidence remains, and that this assessment proceeds on the assumption the evidence would be accepted by the jury.
  • When assessing probative value under s 137 of the Evidence Act 1995, a court proceeds on the assumption that the evidence is accepted; questions of reliability and credibility are only rarely relevant to that assessment and should not routinely be imported into the probative value calculation.
  • No error-free balancing under s 137 can occur where a judge conflates the credibility or reliability of evidence with its probative value, since these are conceptually distinct inquiries.
  • The availability of a judicial warning under s 165 of the Evidence Act 1995 is a material consideration before concluding that prejudice arising from identification evidence is "unfair"; a trial court is required to address that possibility rather than treating identification evidence as presumptively creating unfair prejudice.
  • Identification evidence is not automatically subject to exclusion under s 137 merely because it carries the general risks associated with eyewitness identification; the trial judge must identify a specific respect in which the evidence would cause unfair prejudice on the particular facts.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW): ss 55(1), 97(1)(b), 98(1)(b), 101, 103(1), 115, 116, 135, 137, 165
- Criminal Appeal Act 1912 (NSW): s 5F(3A)
- Crimes Act 1900 (NSW): ss 29, 30, 33

Cases
- Adam v The Queen (2001) 207 CLR 96
- Papakosmas v The Queen (1999) 196 CLR 297
- Festa v The Queen (2001) 208 CLR 593
- Doney v The Queen (1990) 171 CLR 207
- R v NKS [2004] NSWCCA 144
- R v Lameri [2004] NSWCCA 217
- R v Milakovic [2004] NSWCCA 199
- R v Carusi (1997) 92 A Crim R 52
- R v Singh-Bal (1997) 92 A Crim R 397
- R v Yates [2002] NSWCCA 520
- R v Rahme [2004] NSWCCA 233
- R v AB [2001] NSWCCA 496
- R v Cook [2004] NSWCCA 52
- R v BD (1997) 94 A Crim R 131
- R v Lisoff [1999] NSWCCA 364
- Bendix Autolite Corp v Midwesco Enterprises Inc, 486 US 888 (1988)