Citation: R v Wayne Rodney SCHNEIDER (No 2) [2010] NSWDC 7
Court: District Court of New South Wales
Date: 9 February 2010
Judge(s): Berman SC DCJ
Background
The accused stood charged in connection with a shooting at a venue, during which a pistol was discharged. A doorman, Mr Usman, was present that night and became involved in a physical altercation before the shot was fired. He did not see the weapon discharged, but he had seen a man holding a pistol shortly before the fight began.
Mr Usman gave police a description of that man, noting his height, muscular build, tattoos resembling flames on his left arm, a brown goatee beard, spiky brown hair with blond tips, and an apparent Lebanese appearance. Months after providing that description, he was shown a photographic array that included a photograph of the accused.
The accused brought an application to exclude evidence of what occurred during that photographic identification procedure, arguing that police questioning following Mr Usman's initial tentative response had converted a mere resemblance opinion into a positive identification, creating an unacceptable risk of unfair prejudice at trial.
Legal Issues
- Whether the photographic identification evidence should be excluded under the Evidence Act 1995 because its probative value was outweighed by the risk of unfair prejudice to the accused
- Whether the photographic array itself was adequately constructed, given that none of the photographs depicted a man with a goatee beard and few appeared to show anyone of Lebanese origin
- Whether a direction to the jury could adequately address the risk that jurors would give the identification evidence greater weight than it deserved
Decision
The court found that Mr Usman's initial response to the photographic array was one of resemblance rather than positive identification. When he selected photograph four, which was the photograph of the accused, he described the person as looking familiar and said the person looked like "the guy who shot." He had expressed uncertainty at first and only reached that view after reviewing all photographs twice.
The problem arose immediately after that selection. The police officer summarised Mr Usman's response by stating, "Okay, you've just indicated that the guy that did the shooting." Mr Usman then confirmed this in positive terms. The court accepted that the officer was likely attempting to summarise what had been said rather than to influence the witness, but concluded that the effect was to communicate to Mr Usman that he had picked the person police believed to be the shooter. That interaction transformed an expression of resemblance into a positive identification.
The court also noted deficiencies in the array itself: none of the photographs showed a man with a goatee beard, which was a feature Mr Usman had specifically described, and few appeared to be of Lebanese appearance. However, the court placed less weight on those deficiencies because there was no evidence that Mr Usman had been told the array was specifically designed to identify the shooter, and he believed he was simply being asked to pick out people he had seen that evening.
Ultimately, the court held that the probative value of the identification evidence was outweighed by the risk of unfair prejudice. Identification evidence carries a recognised risk that juries will assign it greater weight than it deserves, even when warned. In this case, the circumstances of the procedure had reinforced that risk. The possibility of a jury direction was considered but found to be insufficient to cure the prejudice, and the evidence was excluded.
Orders Made
- The identification evidence objected to was excluded.
Key Takeaways
- The District Court confirmed that identification evidence carries a particular danger in criminal trials because such witnesses are typically honest and persuasive, which can cause juries to overestimate the reliability of their testimony.
- Where police conduct following an identification procedure converts a tentative resemblance opinion into a positive identification, the probative value of the resulting evidence may be outweighed by the risk of unfair prejudice, warranting exclusion under the Evidence Act 1995.
- Judicial directions to the jury were held to be insufficient in the circumstances of this case to remedy the prejudicial effect created by the way the identification was conducted.
- A photographic array that does not include photographs reflecting features the witness specifically described (here, a goatee beard and apparent Lebanese appearance) is a matter the court will consider when assessing the risk of unfair prejudice, though it will not necessarily be decisive standing alone.
- The court accepted that the police officer acted without improper intent, but made clear that unintended consequences of police conduct during identification procedures can still produce an inadmissible result.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW)
Cases:
- R v Wayne Rodney Schneider (No 1) [2010] NSWDC 6