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33
Court of Criminal Appeal 14 March 2000

R v BLICK [2000] NSWCCA 61 revised - 14

[2000] NSWCCA 61

Also reported as (2000) 111 A Crim R 326
Assault & violenceTheft & property
CRIMINAL LAW AND PROCEDURE ADMISSION OF EVIDENCE EVIDENCE ACT 1995, S137

Citation: R v Blick [2000] NSWCCA 61; (2000) A Crim R 326
Court: NSW Court of Criminal Appeal
Date: 14 March 2000
Judge(s): Sheller JA; James J; Dowd J

Background

The appellant was convicted of armed robbery following an incident at a furniture warehouse, during which a sales assistant was threatened with a wooden bedpost and robbed of cash and a small bum bag. The victim gave police a description of the offender that included a notable feature: a goatee beard.

One week after the robbery, before being asked to view photographs, the victim was shown the stolen bum bag and identified it as his. He was then shown a bundle of twelve photographs, one of which was the appellant. That photograph was the only one in the bundle showing a man with a goatee beard. The victim selected it as the robber. He later made a formal statement that referenced this photographic identification.

At trial, the appellant sought to have the photographic identification evidence excluded under s 137 of the Evidence Act 1995. The trial judge, Howie DCJ, refused that application. The jury convicted the appellant, and he appealed on the ground that admission of the identification evidence caused a miscarriage of justice.

  • Whether the trial judge was required under s 137 of the Evidence Act 1995 to exclude the photographic identification evidence because its probative value was outweighed by the danger of unfair prejudice to the defendant.
  • Whether the trial judge erred by treating s 137 as conferring a discretion rather than imposing a mandatory obligation to exclude evidence that fails the statutory weighing test.
  • Whether, on the facts, the probative value of the identification evidence was outweighed by the danger of unfair prejudice to the appellant.

Decision

The Court of Criminal Appeal, with Sheller JA writing the principal judgment and James and Dowd JJ agreeing, allowed the appeal and directed entry of a verdict of acquittal.

On the proper operation of s 137, the Court confirmed that the section does not confer a discretion. A judge must perform a weighing exercise: if the probative value of the prosecution's evidence is outweighed by the danger of unfair prejudice to the defendant, the evidence must be rejected. There is no residual discretion to admit it anyway.

Turning to the facts, the Court found the probative value of the identification was low. The victim had been shown the stolen bum bag immediately before viewing the photographs, which was likely to have alerted him that the offender had been apprehended. Critically, the appellant's photograph was the only one in the bundle depicting a man with a goatee beard, which was the victim's primary identifying feature for the offender. The Court regarded this as barely better than showing the victim a single photograph of the appellant. The problem was compounded because the appellant's photograph was a different shape and size from the others, suggesting it had been trimmed, making it further stand out.

The unfair prejudice to the appellant was substantial. The photographic identification cemented the appellant's image in the victim's mind before he made his formal statement and before he gave evidence at trial. Given that the identification evidence was also an essential plank of the Crown's case, the Court concluded there was only one available conclusion: the evidence had to be excluded under s 137. Because that evidence was improperly admitted, the conviction could not stand.

Orders Made

  • Appeal allowed.
  • Conviction of the appellant quashed.
  • Judgment and verdict of acquittal entered.

Key Takeaways

  • Under s 137 of the Evidence Act 1995, a court must exclude prosecution evidence whose probative value is outweighed by the danger of unfair prejudice to the defendant. The provision creates an obligation, not a discretion.
  • A photo identification array in which only one photograph depicts the distinctive feature that the witness identified as belonging to the offender is, in the Court's assessment, little better than showing the witness a single photograph of the suspect.
  • Showing a witness the recovered stolen property before presenting a photo array is liable to alert the witness that the offender has been apprehended, reducing the independence and reliability of any subsequent identification.
  • Probative value and prejudicial effect must both be assessed in context: where identification evidence is the cornerstone of the Crown's case, the prejudice flowing from a flawed identification procedure is correspondingly more acute.
  • Where inadmissible identification evidence was central to the prosecution and no other basis for conviction reliably existed, the Court of Criminal Appeal directed entry of an acquittal rather than ordering a retrial.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 137

Cases
- Moran v McMahon (1985) 3 NSWLR 700
- Carusi v R (1997) 92 A Crim R 52
- Alexander v The Queen (1981) 145 CLR 395
- R v Christie [1914] AC 545
- R v Edelsten (1990) 21 NSWLR 542
- Domican v The Queen (1992) 173 CLR 555
- Lee Transport Co Ltd v Watson (1940) 64 CLR 1
- Miller v Jennings (1954) 92 CLR 190
- R v Truong (1996) 86 A Crim R 188