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Supreme Court 3 June 2014

R v Smith (No.3)

[2014] NSWSC 771

Homicide
CRIMINAL LAW EVIDENCE IDENTIFICATION EVIDENCE MODES OF IDENTIFICATION OTHER VISUAL IDENTIFICATION SINGLE PHOTOGRAPH

Citation: R v Smith (No.3) [2014] NSWSC 771
Court: Supreme Court of New South Wales
Date: 3 June 2014
Judge(s): Garling J

Background

The accused stood trial for the murder of Joshua George, shot once with a .22 calibre rifle at Claymore on 20 January 2013. The accused did not dispute that he fired the fatal shot. The central issue at trial was whether he acted in self-defence.

A witness, Mr Stein, had observed a male figure in a dark blue hoodie and jeans emerge from a pathway onto Gidley Crescent shortly before the shooting. The accused's case was that this figure was another person entirely. The Crown contended the figure was the accused, who had changed clothes after being seen wearing different clothing minutes earlier.

The Crown sought leave, during re-examination of Mr Stein, to adduce evidence that Mr Stein had later that afternoon seen a photograph of the accused in an online news article and recognised him as the figure he had observed. Defence counsel opposed the application on the grounds that the evidence had little probative value and posed a significant risk of unfair prejudice to the accused.

  • Whether identification evidence arising from a witness spontaneously viewing a single photograph published alongside a news article was admissible.
  • Whether the probative value of that identification evidence was outweighed by the danger of unfair prejudice to the accused, requiring its exclusion under section 137 of the Evidence Act 1995 (NSW).

Decision

Garling J refused leave to adduce the identification evidence, finding that the danger of unfair prejudice to the accused far outweighed its probative value, as required by section 137 of the Evidence Act 1995.

His Honour identified several features that undermined the reliability of the identification. The photograph showed a single image of the accused from the neck up, published alongside a police appeal seeking the public's assistance, which magnified the well-known unreliability risks of single-photograph identifications. This approach is recognised as unfair and improper, as confirmed in Alexander v The Queen (1981) 145 CLR 395. Additionally, the actual MSN article and photograph were not available to either party. The risk of a "displacement effect" was also present: that Mr Stein's recollection of the figure he had actually observed might be unconsciously replaced by his later viewing of the photograph.

The probative value of the evidence was assessed as relatively low. Mr Stein's description of the figure's clothing was wholly inconsistent with the clothing the accused had been seen wearing minutes before the shooting. The Crown's own case placed the accused behind a fence at the moment the fatal shot was fired, not on the roadway where Mr Stein had seen the figure. The highest use the Crown could make of the evidence was to suggest the accused had changed clothes, but given the accused admitted firing the shot and relied on self-defence, that inference carried little weight.

Garling J concluded that the combination of the low probative value, the inherent unreliability of single-photograph identification, the police-sought-assistance framing of the photograph, and the unavailability of the original online article produced a danger of unfair prejudice that was not justified by any countervailing evidentiary benefit to the Crown's case.

Orders Made

  • Leave to further re-examine Mr Stein with respect to his identification of the figure on Gidley Crescent was refused.

Key Takeaways

  • Single-photograph identification evidence carries well-established reliability risks, and those risks are amplified when the photograph is presented alongside a police appeal identifying the person as a suspect or person of interest.
  • Under section 137 of the Evidence Act 1995, a court must exclude prosecution evidence where the danger of unfair prejudice to the accused outweighs its probative value. The statutory obligation is mandatory once that threshold is crossed.
  • The "displacement effect" is a recognised concern in identification cases: a witness's original visual memory of a person may be unconsciously replaced by a later viewing of a photograph, rendering any subsequent identification of uncertain reliability.
  • Assessing probative value requires situating the evidence within the Crown's actual case theory. Here, the figure's identity on the roadway was peripheral to the Crown's core submission about where the accused stood when firing the shot.
  • The unavailability of the original source material (the online article and photograph as actually displayed) was a further consideration weighing against admission, as neither party could test or verify precisely what Mr Stein had seen.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 116, 137

Cases:
- Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395
- R v Skaf [2004] NSWCCA 37