Citation: R v Sterling; R v McCook [2014] NSWDC 199
Court: District Court of New South Wales
Date: 27 October 2014
Judge(s): Yehia SC DCJ
Background
Two accused persons, both inmates at Parklea Corrections Centre, faced charges of wounding with intent to cause grievous bodily harm and the alternative of recklessly wounding while in company. The incident occurred on 21 June 2013 and was partially captured on CCTV footage running for approximately 20 seconds.
The Crown accepted that the footage was not clear enough for a jury to make its own unaided comparison of the persons depicted against the accused. Accordingly, the Crown sought to rely on opinion evidence from corrections officers who had worked in the relevant area of the prison and claimed to recognise the accused from the footage.
Following a voir dire (a preliminary hearing to test the admissibility of evidence), the Crown narrowed its reliance to two corrections officers: Nicholas Espie and Nathalie Church. The court conducted a detailed examination of each officer's level of familiarity with the accused before ruling on admissibility.
Legal Issues
- Whether the identification evidence of the corrections officers was relevant under s 55 of the Evidence Act 1995 (NSW)
- Whether that evidence constituted opinion evidence under s 76, and if so, whether it fell within the "ad hoc" expert exception in s 79
- Whether, even if admissible, the evidence of Officer Espie should be excluded under s 137 on the basis that its probative value was outweighed by the danger of unfair prejudice
Decision
Issue 1: Relevance under s 55 (Mr McCook)
The court found that the corrections officers' identification evidence in relation to Mr McCook was not relevant and therefore inadmissible under s 55. The evidence of the officers' familiarity with Mr McCook was too limited to rationally affect the probability of any fact in issue. Mr McCook had only been housed in the relevant area for approximately three weeks before the incident, and no officer could point to specific interactions with him during that period.
Issue 2: Opinion evidence and the s 79 exception
The court held that the identification evidence was opinion evidence excluded by s 76, and that it did not meet the requirements of s 79 for the "ad hoc" expert exception. To qualify under s 79, the witness must possess specialised knowledge based on training, study or experience, and the opinion must be wholly or substantially based on that knowledge. The court found that the corrections officers' generalised exposure to the accused through routine prison duties, such as musters lasting only seconds per inmate, did not amount to the kind of specialised knowledge required.
This conclusion applied to both accused. Even in relation to Mr Sterling, where the court found the evidence was relevant under s 55, it still did not satisfy the s 79 threshold. The court distinguished between ordinary recognition evidence and the category of recognition evidence capable of qualifying as ad hoc expert opinion, finding the officers' familiarity fell short of what prior authority required.
Issue 3: Exclusion under s 137 (Officer Espie)
The court addressed the s 137 discretion as an alternative ground. Officer Espie had viewed the CCTV footage in the company of other corrections officers who were discussing the incident and suggesting identifications. The court found there was a real possibility that his identification was contaminated by those discussions, creating a hearsay risk the jury could not properly evaluate. The danger of unfair prejudice, including the risk that the jury would give the evidence undue weight or misuse the apparent consensus among officers, could not be cured by directions. Espie's evidence would have been excluded on this basis. Officer Church, by contrast, had viewed the footage alone and without prior discussion, and her evidence would not have been excluded under s 137.
Orders Made
- Evidence of corrections officers identifying inmates from prison CCTV footage is not "ad hoc" expert evidence and is therefore inadmissible.
Key Takeaways
- The District Court confirmed that recognition evidence from a witness who has had only brief, routine contact with an accused person does not automatically qualify as "ad hoc" expert evidence under s 79 of the Evidence Act 1995 (NSW); a sufficient foundation of familiarity must be established.
- Where an accused has been in an officer's area for only weeks, and contact consisted of musters lasting seconds per inmate with no specific recalled interactions, that level of exposure fell below the threshold required to constitute specialised knowledge for s 79 purposes.
- Contamination of identification evidence arising from a witness viewing CCTV footage collectively with colleagues who are actively discussing and suggesting identifications can ground exclusion under s 137, where the resulting danger of unfair prejudice cannot be addressed by jury directions.
- A meaningful distinction exists between the position of Officer Espie, whose group viewing of footage raised a real contamination risk, and Officer Church, who viewed the footage alone and without prior discussion, with the latter's evidence surviving the s 137 analysis.
- Under s 55, relevance of recognition evidence is not assumed merely because a witness worked in proximity to an accused; the court must be satisfied that the witness's actual familiarity with the individual is sufficient to rationally affect the probability of a fact in issue.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW) ss 55, 79, 137
Cases
- Butera (1987) 164 CLR 180
- Daubert v Merrell Dow Pharmaceuticals Inc 509 US 579 (1993)
- Honeysett v The Queen [2014] HCA 29
- Munderra Smith (1999) 47 NSWLR 419
- R v Burton [2013] NSWCCA 335
- R v Cassar and Sleiman (unreported NSWSC 436)
- R v Drolett [2005] NSWCCA 356
- R v Eastman (1997) 158 ALR 107
- R v Leung Wong [1999] NSWCCA 287
- R v Marsh [2005] NSWCCA 331
- R v Nguon & Ream NSWDC (31 March 2014)
- R v XY [2010] NSWCCA 121
- Smith v R [2001] HCA 50
- Tang v R (2006) A Crim R 377