Citation: Regina v Perese [2001] NSWCCA 467
Court: NSW Court of Criminal Appeal
Date: 13 December 2001
Judge(s): Beazley JA, Hulme J, McClellan J
Background
The appellant was convicted of armed robbery in the District Court following an incident at a Blacktown ANZ bank branch on 19 June 1998. The Crown alleged he and two other males entered the bank, vaulted the counter, and the appellant threatened a bank officer with a knife before taking approximately $2,890 from a cash drawer. Security surveillance cameras recorded the incident.
No witness who was present at the scene identified the appellant. Instead, the Crown's case depended almost entirely on the evidence of a police detective who, having been shown security camera photographs of the robbery, stated he recognised the person depicted as the appellant and was "absolutely certain" of that identification.
The appellant denied any involvement, both in a recorded interview with police and in evidence at trial. He was convicted and sentenced to three years imprisonment with a non-parole period of eight months. He appealed both the conviction and the severity of the sentence.
Legal Issues
- Whether the detective's recognition evidence, identifying the appellant from security camera photographs, was properly admitted at trial
- Whether the wrongful admission of that evidence warranted quashing the conviction
- Whether the Court should order a new trial or decline to do so given the quality of the photographic evidence
Decision
The central question on appeal was resolved by reference to the High Court's decision in Smith v R (2001) 181 ALR 354, published after the trial concluded. In that decision, the High Court held that recognition evidence of the kind admitted here, where a police officer identifies an accused person from photographs, is not relevant and should not be admitted unless there is some issue in the trial beyond simply whether the person in the photograph is the accused. No such additional issue arose in this case.
The Crown accepted that the detective's evidence had been wrongly admitted. It submitted that the Court should order a new trial rather than simply quash the conviction. The appellant argued that the photographs were of insufficient quality and that, without the improperly admitted evidence, there was nothing else connecting him to the offence, so no new trial should be ordered.
McClellan J, with whom Beazley JA and Hulme J agreed, accepted that the photographic images were imperfect but not so poor as to justify taking the matter away from a jury entirely. Given the seriousness of the offence and the fact that the miscarriage arose from the wrongful admission of evidence rather than an absence of any underlying evidence, the appropriate remedy was a new trial. The court exercised its broad discretion under established authority to order accordingly.
Orders Made
- Appeal allowed
- Verdict quashed
- New trial ordered
Key Takeaways
- Following Smith v R (2001) 181 ALR 354, recognition evidence from a police officer identifying an accused from security camera photographs is inadmissible where the only issue is whether the person in the photograph is the accused.
- The Court of Criminal Appeal confirmed that wrongful admission of the sole identification evidence in a criminal trial constitutes a miscarriage of justice sufficient to quash a conviction.
- A new trial, rather than outright acquittal, is the appropriate remedy where the offence is serious and the miscarriage arises from an evidentiary error rather than a fundamental absence of proof.
- Imperfect photographic quality alone does not preclude the ordering of a new trial, provided the images are not so inadequate that no reasonable jury could act on them.
- The court's discretion to order a new trial is broad, and both the gravity of the offence and the nature of the trial error are relevant factors in exercising that discretion.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97(1) (armed robbery, maximum penalty 20 years imprisonment)
Cases:
- Smith v R (2001) 181 ALR 354 (High Court)
- King v R (1986) 161 CLR 423 (High Court)
- DPP (Nauru) v Fowler (1984) 154 CLR 627 (High Court)
- R v Gordon (1994) 71 A Crim R 459