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District Court 15 December 2006

R v Matthew Thomas

[2006] NSWDC 171

Theft & property
CRIMINAL LAW PRE TRIAL VOIR DIRE INTERLOCUTORY JUDGMENT ADMISSIBILITY OF EVIDENCE EVIDENCE OF IDENTIFICATION

Citation: R v Matthew Thomas [2006] NSWDC 171
Court: District Court of New South Wales
Date: 15 December 2006
Judge(s): Nicholson SC DCJ

Background

The accused was charged with robbery in company, arising from an incident on 12 April 2005 in which the complainant was robbed by four youths while taking a shortcut across a golf course in Parramatta. The prosecution case depended heavily on identification evidence given by the complainant.

Three months after the robbery, police showed the complainant a computer-generated array of 20 photographs. The session was video recorded and a CD captured the complainant's interaction with the display in real time. From that array, the complainant selected the accused's photograph, though his selection process involved covering portions of photographs with a post-it sticker and also pausing over other images before settling on his choice.

The accused pleaded not guilty. Before trial, defence counsel brought a pre-trial voir dire challenging the admissibility of the photographic identification evidence and a separate category of evidence relating to two alleged prior encounters between the complainant and the accused.

  • Whether the photographic array infringed s 115(2) of the Evidence Act 1995 (NSW) by suggesting the subjects were persons in police custody, due to the style and format of the photographs
  • Whether the quality of the complainant's identification was so weak that the evidence should be excluded under s 137 of the Evidence Act 1995 (NSW) on the basis that the danger of unfair prejudice to the accused outweighed its probative value
  • Whether evidence of two prior alleged encounters between the complainant and the accused should be admitted as recognition evidence, having regard to probative value and the risk of unfair prejudice

Decision

Photograph array: s 115(2) "police custody" objection

The court rejected the argument that the photographs in the array suggested the subjects were in police custody. The judge observed that expressionless, front-facing photographs are a feature of everyday life, appearing on driver's licences, passports, workplace identification cards, and sporting registrations. The format of the photographs did not, in the court's view, carry the connotation of a custody setting.

Photograph array: s 137 discretion to exclude

The court acknowledged several weaknesses in the complainant's identification: a minimal initial description of the offender, poor lighting at the scene, a three-month gap before the array was shown, and an equivocal selection process involving hesitation over multiple photographs. Despite these factors, the court held they went to the weight of the evidence rather than its admissibility, and that they raised classic jury questions about the complainant's accuracy and credibility. The court found no danger of unfair prejudice that would outweigh the probative value of the evidence, and admitted it accordingly. The court also noted that, even if that reasoning were wrong, probative value would still outweigh any such danger.

Prior-incident recognition evidence

The court rejected the evidence of both prior incidents. The first alleged incident, said to have occurred three years before the robbery and involving rock-throwing, had never been reported to police. The second, occurring one week before the robbery and involving alleged following behaviour, had been reported. The court found both episodes raised coincidence and tendency issues for which no notice had been given to the defence. The court concluded that the prejudicial effect of this material on the accused substantially outweighed its probative value in supporting the photographic identification. In particular, both incidents risked inviting improper speculation that the accused had been targeting the complainant or engaging in preparatory conduct. The evidence of both incidents was excluded.

Orders Made

  • Evidence of identification from the photographic array: admitted
  • Evidence of claimed recognition arising from the two prior encounters: rejected

Key Takeaways

  • The District Court confirmed that the format of photographs in a police-conducted array does not necessarily suggest the subjects are in police custody, particularly where similar expressionless, front-facing photographs are commonplace in ordinary identification contexts such as licences and passports.
  • Weaknesses in an identification, including poor lighting, a lengthy gap before the array, a minimal initial description, and an uncertain selection process, are ordinarily matters of weight for the jury rather than grounds for exclusion under s 137 of the Evidence Act 1995 (NSW).
  • Under s 137, exclusion requires that the danger of unfair prejudice to the accused outweigh probative value; a court will not exclude identification evidence simply because that evidence is contestable or open to attack on credibility grounds.
  • Where prior-incident evidence raises coincidence and tendency issues, carries a significant risk of inviting improper reasoning by the jury, and no statutory notice has been given to the defence, the probative value of that evidence may be insufficient to justify its reception.
  • The absence of a police complaint regarding an alleged prior incident, combined with the passage of several years and the maturation of the accused's appearance, can reduce the probative value of claimed recognition evidence to a level that does not justify the prejudice its admission would cause.

Legislation and Cases Referenced

Legislation

  • Evidence Act 1995 (NSW), ss 115, 116, 137, 165

Cases

No cases were cited in the text of the judgment as provided.