Citation: R v Nguyen & Ors [2006] NSWSC 834
Court: Supreme Court of New South Wales
Date: 29 August 2006
Judge(s): Hulme J
Background
Four accused persons faced charges including murder arising from a shooting. CCTV cameras at the scene recorded footage of individuals present, and still photographs were produced from that footage. The Crown sought to rely on evidence from two experienced Cabramatta police officers, Senior Constables Young and Purcell, who had each made extensive prior observations of the accused during their ordinary policing duties.
The two officers gave evidence that they could identify the accused as the persons depicted in the CCTV footage and still photographs. Senior Constable Young had met with one accused on over 100 occasions and each of the others on at least 50 occasions since 1996. Senior Constable Purcell had seen the accused on a near-weekly basis over several years.
Defence counsel objected to this identification evidence on grounds of relevance, admissibility under the Evidence Act 1995 (NSW), and unfair prejudice. Hulme J delivered these reasons to explain the ruling he had made admitting the evidence on 20 April 2006.
Legal Issues
- Whether the officers' identification evidence was relevant, having regard to the High Court's decision in Smith v R (2001) 206 CLR 650
- Whether the evidence was admissible as lay opinion under section 78 of the Evidence Act, or as expert opinion under section 79
- Whether the evidence should be excluded under sections 135 or 137 of the Evidence Act on the basis that any probative value was outweighed by the danger of unfair prejudice
Decision
Issue 1: Relevance and the Smith v R test
The defence placed heavy reliance on Smith v R, submitting that the High Court majority had established a broad test of inadmissibility for this type of identification evidence. Hulme J rejected that reading of Smith v R, finding that the majority's conclusion in that case turned on the fact that the witness and the jury were working from identical underlying material (at [22]-[24]). Here, the circumstances were materially different. Both officers gave evidence of significant differences between each accused's appearance at the time of the offence and their appearance at trial (at [25]). Hulme J had himself noted those differences when observing the accused in the dock and comparing them against photographs in evidence, and recorded his impressions in a document (MFI 14) provided to counsel, none of whom disputed the existence of those differences (at [26]). Because the officers' identifications were founded on material appreciably different from what was available to the jury, the evidence was not irrelevant under the Smith v R principle (at [27]).
Issue 2: Opinion evidence under the Evidence Act
Hulme J characterised the officers' evidence that persons depicted in the footage were the accused as opinion evidence. He found it admissible under section 78 as lay opinion, because it was based on what each officer had perceived about the accused in real life and what was depicted in the footage. The difficulty of describing distinctive physical characteristics, including manner of walking, with sufficient precision to identify one person from others sharing a similar trait meant that opinion evidence was necessary to give an adequate account of the officer's perception (at [28]-[29]). Hulme J also found the evidence admissible under section 79, being satisfied that each officer possessed specialised knowledge of the appearance and identity of all four accused based on fairly extensive experience with them (at [30]).
Issue 3: Exclusion for unfair prejudice under sections 135 and 137
The defence argued that evidence of extensive police observation of the accused would cause the jury to speculate about criminal activity and to place disproportionate weight on identification evidence from authority figures. Hulme J accepted that some inference of police suspicion was likely but rejected the proposition that the jury would draw conclusions about specific criminal conduct. He noted that Cabramatta's publicly known reputation for street drug activity explained regular police contact with local individuals without implying proven offending (at [36]-[37]). He further held that it was inconceivable a jury would convict of murder on the basis of mere suspicion of unrelated criminal activity (at [38]). Applying the principle from R v Shamouil [2006] NSWCCA 112 that probative value is assessed on the basis that the evidence is accepted, Hulme J found the evidence of substantial weight going directly to a vital issue in the trial (at [33]-[34]). Even taking the danger of unfair prejudice at its highest, the probative value of the officers' evidence heavily outweighed that danger, and neither section 135 nor section 137 required exclusion (at [42]).
Orders Made
The evidence of Senior Constables Young and Purcell was ruled admissible. The probative value of that evidence was found to heavily outweigh any danger of unfair prejudice, and no basis for exclusion under sections 135 or 137 of the Evidence Act was established. (at [42])
Key Takeaways
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Identification evidence from police officers who observed the accused over many years is not rendered irrelevant by Smith v R where there are significant differences between the accused's appearance at the time of the offence and at trial, because the officer and the jury are not working from identical material (at [25]-[27]).
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Under section 78 of the Evidence Act, a police officer's identification of an accused person in CCTV footage constitutes admissible lay opinion where it is based on the officer's prior personal observations of the accused, particularly when distinctive physical characteristics such as gait are difficult to capture in factual description alone (at [28]-[29]).
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Extensive prior contact between police and the accused, forming the basis of familiarity sufficient for identification, may also qualify as specialised knowledge under section 79, making the officer's opinion evidence admissible on that independent ground (at [30]).
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A jury inference that police suspected the accused of unrelated criminal activity does not, without more, constitute unfair prejudice sufficient to exclude identification evidence of substantial probative value in a murder trial (at [36]-[38]).
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Probative value for the purposes of sections 135 and 137 is assessed on the assumption that the evidence will be accepted, consistent with the approach confirmed in R v Shamouil [2006] NSWCCA 112; weaknesses affecting the weight of identification evidence do not necessarily reduce its admissibility (at [33]).
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated