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District Court 9 February 2010

R v Wayne Rodney SCHNEIDER (No 1)

[2010] NSWDC 6

Assault & violence
CRIMINAL LAW JUDGMENT ADMISSIBILITY OF EVIDENCE PHOTO IDENTIFICATION ASSESSMENT OF RISK OF UNFAIR PREJUDICE DISPLACEMENT EFFECT

Citation: R v Wayne Rodney SCHNEIDER (No 1) [2010] NSWDC 6
Court: District Court of New South Wales
Date: 9 February 2010
Judge(s): Berman SC DCJ

Background

The accused faced a charge of maliciously inflicting grievous bodily harm with intent, arising from an incident on 11 February 2006 outside a nightclub in the Kings Cross area of Sydney. A dispute over entry to the club escalated into a physical confrontation between security staff and a group seeking admission. Once the altercation moved out of CCTV range, a security guard was shot in the leg with a pistol.

A witness, Ms Egan, was present near the nightclub that night. Approximately four months after the incident, she attended a police station and was shown a computer-displayed array of twenty photographs. Before completing the full array, she selected the accused's photograph (position five) as depicting the shooter, then confirmed that selection after viewing all twenty images.

Before the jury was empanelled, the accused's counsel applied to exclude Ms Egan's identification evidence under section 137 of the Evidence Act 1995, arguing that its probative value was outweighed by the risk of unfair prejudice to the accused.

  • Whether the photographic array was structured in a way that caused the accused's photograph to stand out, thereby creating a risk of unfair prejudice under section 137 of the Evidence Act 1995
  • Whether, in assessing probative value under section 137, the court should take into account questions of reliability and credibility of the identification witness
  • Whether a "displacement effect" (the possibility that Ms Egan's recollection had been contaminated by a later sighting of someone else) reduced the probative value of the identification to a degree that warranted exclusion
  • Whether tactical consequences for the accused (specifically, whether the jury might draw adverse inferences from his inability to produce an alternative suspect) constituted unfair prejudice for the purposes of section 137

Decision

The court applied the approach confirmed in R v Mundine and R v Shamouil, which holds that in assessing probative value under section 137, a trial judge must not evaluate the reliability or credibility of the identification witness. That function belongs to the jury. However, factors bearing on the accuracy of an identification remain relevant when assessing the risk of unfair prejudice.

On the composition of the photographic array, the court was not persuaded that the accused's photograph stood out in a way that would subconsciously guide Ms Egan toward selecting it. While there were some differences between photographs (including the accused's possibly darker complexion and the presence of two earrings), the court observed that every photograph in any array differs from the others to some degree. The relevant test is not whether the accused looks different from the other nineteen subjects, but whether the array carries a real risk of unfair prejudice. The court was satisfied it did not.

The court also addressed a "displacement effect" argument (not fully reproduced in the provided text), which raised the possibility that Ms Egan's identification was influenced by a later sighting of a different person. The court considered the circumstances of her reaction when viewing the array and her expressed basis for the selection, concluding that the risk of such contamination did not rise to the level required for exclusion.

On the question of tactical consequences for the accused relating to an alternative suspect referred to as "white shoes," the court expressed doubt that section 137 extends to such collateral consequences. In any event, the court assessed the weight of that consideration as low, particularly given that appropriate jury directions on the dangers of identification evidence would address the risk of illogical or emotional reasoning. The court concluded that any residual risk was minimal compared to the probative value of the identification, and admitted the evidence.

Orders Made

The identification evidence of Ms Egan was admitted.

Key Takeaways

  • Under section 137 of the Evidence Act 1995, a trial judge assessing probative value must not weigh the reliability or credibility of a witness, as confirmed by R v Mundine and R v Shamouil. Those matters are reserved for the jury.
  • The District Court confirmed that the relevant test for a photographic array is not whether the accused looks different from other subjects, but whether the array creates a real risk of unfair prejudice. Some degree of difference between photographs is inevitable and does not, by itself, warrant exclusion.
  • Where an identification witness spontaneously selects a photograph before completing the full array, and explains the basis of that selection by reference to facial features, this may support a finding that the selection was not unduly influenced by incidental characteristics such as skin tone or jewellery.
  • Appropriate judicial directions to the jury on the dangers of identification evidence are a relevant consideration in assessing whether the risk of unfair prejudice is outweighed by probative value.
  • The court expressed reservations about whether section 137 extends to purely tactical consequences for the accused flowing from the admission of evidence, as distinct from the risk that the jury would reason illogically or emotionally from the evidence itself.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), section 137

Cases
- R v Bakir [2009] NSWDC 12
- R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 325
- R v Fisher [2001] NSWCCA 380
- R v Mundine [2008] NSWCCA 55
- R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228