Citation: R v Keenan Mundine [2008] NSWCCA 55
Court: NSW Court of Criminal Appeal
Date: 18 March 2008
Judge(s): McClellan CJ at CL, Grove J, Simpson J
Background
The respondent was charged under s 112 of the Crimes Act 1900 with breaking out of a dwelling house after committing stealing and inflicting actual bodily harm on two women occupants during an early-morning home invasion in November 2005. The two occupants, who had the intruder under observation for approximately 20 minutes (including around 15 minutes under normal interior lighting), each separately identified the respondent from photographic arrays shown to them by police.
Each witness selected the respondent's image with considerable confidence. However, concerns arose about aspects of the identification procedures: the constable arranging the first identification referred in the witness's presence to the CD as showing "local offenders," and the second witness acknowledged knowing that the first had already selected a photograph before undertaking her own identification.
At trial in the District Court, Solomon DCJ excluded both witnesses' identification evidence under s 137 of the Evidence Act 1995, finding that the risk of unfair prejudice outweighed the probative value. Those rulings effectively eliminated the Crown's case. The Director of Public Prosecutions appealed under s 5F(3A) of the Criminal Appeal Act 1912, which permits a Crown appeal against evidentiary rulings that eliminate or substantially weaken the prosecution's case.
Legal Issues
- Whether the trial judge correctly applied the s 137 balancing test by taking into account the reliability and credibility of the identification evidence when assessing its probative value
- Whether the probative value of the identification evidence was diminished by: (a) the inherent unreliability of photo identification; (b) a non-representative photo array; and (c) cross-racial identification considerations
- Whether the procedural irregularities in each identification process (the "local offenders" reference and the second witness's prior knowledge of the first's identification) gave rise to unfair prejudice sufficient to outweigh the probative value of the evidence
Decision
Simpson J (with whom McClellan CJ at CL and Grove J agreed) held that Solomon DCJ had erred in the s 137 balancing exercise by incorporating questions of reliability and credibility into the assessment of probative value. Consistent with the Court of Criminal Appeal's earlier decision in R v Shamouil, the probative value of evidence must be assessed on the assumption that the jury will accept it. Concerns about reliability and credibility are not relevant at the probative value stage of that analysis.
The Court found the probative value of both witnesses' identification evidence to be very high. The women had a substantial and sustained opportunity to observe the intruder, and each made a clear, confident identification. The three factors relied upon by Solomon DCJ to diminish probative value (inherent unreliability of photo identification, non-representative array composition, and cross-racial identification) were impermissible considerations at that stage of the s 137 analysis.
On the question of unfair prejudice arising from the "local offenders" reference, the Court observed that the words applied equally to all images on the CD and did not explain why the witness selected the respondent's image in particular. During the voir dire both witnesses vigorously denied being influenced by the respective irregularities, and the Court assessed the risk of actual unfair prejudice as very low. The probative value substantially outweighed any such risk.
With the ruling on the first witness's evidence set aside, the Court also set aside the ruling on the second witness's evidence. The concern underpinning that ruling, that prior knowledge of the first identification tainted the second, was itself dissolved. The second witness's selection of the respondent's image remained unexplained by that cross-contamination argument alone.
Orders Made
- Both appeals allowed
- Judgment of Solomon DCJ of 15 November 2007 set aside
- Judgment of Solomon DCJ of 19 November 2007 set aside
Key Takeaways
- Under s 137 of the Evidence Act 1995, probative value must be assessed on the assumption that the jury accepts the evidence; questions of credibility and reliability are not relevant to that assessment and cannot be used to reduce it.
- The Court of Criminal Appeal confirmed the approach established in R v Shamouil [2006] NSWCCA 112: a trial judge errs in law by factoring reliability concerns into the probative value side of the s 137 balancing exercise.
- Weight of the evidence is, however, a permissible consideration on the other side of the ledger: when assessing the degree of unfair prejudice, a court may take into account how much weight a jury is likely to place on the evidence.
- Procedural irregularities in an identification procedure do not automatically generate sufficient unfair prejudice to trigger exclusion under s 137; the actual risk of prejudice must be weighed against probative value on the specific facts.
- Where an appellate court finds that a s 137 balancing exercise was performed on an erroneous basis, it may undertake the balancing exercise afresh rather than remitting the matter to the trial court.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 112
- Criminal Appeal Act 1912 (NSW), s 5F(3A)
- Evidence Act 1995 (NSW), ss 137, 165(2)
Cases
- R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228
- R v Cook [2004] NSWCCA 52
- R v Rahme [2004] NSWCCA 233
- Alexander v The Queen [1981] HCA 17; 145 CLR 395
- Adam v The Queen [2001] HCA 57; 207 CLR 96
- Edwards v The Queen [1993] HCA 63; 178 CLR 193
- Papakosmas v The Queen [1999] HCA 37; 196 CLR 297