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Court of Criminal Appeal 29 July 2009

Aslett v R

[2009] NSWCCA 188

Assault & violenceTheft & property
CRIMINAL LAW APPEAL AND NEW TRIAL IDENTIFICATION EVIDENCE COURT IDENTIFICATION THE DISPLACEMENT EFFECT APPLICATION OF THE PROVISO

Citation: Aslett v R [2009] NSWCCA 188
Court: NSW Court of Criminal Appeal
Date: 29 July 2009
Judge(s): Allsop P, Kirby J, Johnson J

Background

The appellant was tried in the District Court at Parramatta on four charges arising from an incident on 29 May 2006: aggravated taking of a motor vehicle with a person in it, taking a person with intent to obtain advantage, aggravated indecent assault, and robbery in company. The complainant, a 20-year-old woman, was forced into the back seat of her own car at knifepoint in a Parramatta carpark. Her ATM card was used to withdraw $800 and she was subjected to indecent touching before being released. Crucially, she never saw the faces of either offender and could not identify them.

The Crown's case rested heavily on two pieces of circumstantial evidence. First, a photo identity card bearing the appellant's name and photograph was found in the complainant's purse after she was released. Second, a security guard at a hotel where the offender used the ATM gave evidence, including an in-court identification of the appellant. The jury convicted on all counts after a short trial, and the appellant was sentenced to an aggregate term of eight years and six months with a non-parole period of six years.

The appeal challenged both the convictions and the sentences. The central complaint concerned the security guard's in-court identification and the trial judge's handling of that evidence.

  • Whether the in-court identification by the security guard was so unreliable that the trial judge should have discharged the jury
  • Whether the trial judge failed to direct the jury that the in-court identification was of no value on the identification issue
  • Whether the trial judge failed adequately to specify the weaknesses in the identification evidence, including the "displacement effect" (the risk that a witness identifies an accused in court simply because they have seen the accused's face repeatedly during the investigation and proceedings, rather than from genuine memory of the original event)
  • Whether, even if those errors were established, the proviso should be applied to dismiss the appeal on the ground that conviction was inevitable on the other evidence

Decision

The Court of Criminal Appeal, in reasons delivered by Kirby J (with Allsop P and Johnson J agreeing), found that the in-court identification was deeply problematic. The security guard had been shown a photo array after the event and could not identify the appellant from it. By the time of trial, however, he made a positive in-court identification. The court found this was a classic example of the displacement effect: repeated exposure to the appellant's image during the investigation had contaminated the witness's memory, so that any in-court recognition reflected that exposure rather than genuine recall from the night of the incident.

The trial judge's directions to the jury on identification evidence were found to be materially inadequate. A proper direction was required not merely to caution the jury about eyewitness reliability generally, but to identify the specific weaknesses in this evidence, including the failed photo array and the real risk that the witness had unconsciously substituted a later image for any original recollection. The court found the judge should have directed the jury that the in-court identification was of no probative value on the identification issue, and that the failure to discharge the jury when the problematic identification was led compounded the error.

On the question of whether the proviso should be applied, the court declined. The proviso permits an appellate court to dismiss an appeal despite a trial error if the evidence made conviction inevitable. The court was not persuaded that a properly directed jury, considering only the properly admitted evidence, would inevitably have convicted the appellant. The photo identity card, while significant, did not by itself establish that the appellant was the person who used it during the robbery. The security guard's description was also inconsistent with the appellant in some respects, and the CCTV footage was of poor quality. There remained a genuine question whether the appellant was the person present at the hotel.

Orders Made

  • Appeal allowed
  • Convictions quashed and sentences set aside
  • The appellant is to have a new trial

Key Takeaways

  • In-court identifications carry significant risks where a witness previously failed to identify the accused in a photo array. Repeated exposure to an accused's image before trial can produce the "displacement effect," where recognition in the courtroom reflects that exposure rather than genuine memory of the original event.
  • A trial judge is required to go beyond a general caution about identification evidence. The directions must specifically identify the weaknesses in the particular identification evidence before the jury, including any failed prior identification procedures and the risk of displacement.
  • Where an in-court identification is so contaminated as to be of no probative value, the appropriate direction to the jury is that the evidence cannot be used on the identification issue at all.
  • The proviso will not save a conviction where the remaining evidence does not make conviction inevitable. Circumstantial evidence, such as a photo identity card found at the scene, may leave open a reasonable hypothesis that the accused was not the offender, particularly where other identification evidence is inconsistent or unreliable.
  • Inconsistencies between a witness's description and the accused's actual appearance, combined with discrepancies between the type of identification document described and what was actually tendered, are matters the court will weigh when assessing whether untainted evidence would inevitably have secured a conviction.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(1), 86(2)(a), 97(1), 154C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Evidence Act 1995 (NSW)

Cases
- Domican v The Queen (1991-1992) 173 CLR 555
- Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
- Alexander v The Queen (1980-1981) 145 CLR 395
- Crofts v The Queen (1996) 186 CLR 427
- Davies & Cody v The King [1937] 57 CLR 170
- Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521
- R v Skaf [2004] NSWCCA 37
- Qoro v Regina [2008] NSWCCA 220
- R v Tahere [1999] NSWCCA 170
- R v Akgul [2002] VSCA 222; (2002) 5 VR 537
- R v Taufua (unreported, NSWCCA, 11 November 1996)
- R v Adamson (unreported, NSWCCA, 26 November 1992)