Reported Decision : [2000] 113 A Crim R 376 New South Wales Court of Criminal Appeal CITATION : R v Gee [2000] NSWCCA 198 FILE NUMBER(S) : CCA 60772/98 HEARING DATE(S) : 17/03/2000 JUDGMENT DATE : 26 May 2000 PARTIES : Stephen Robert Gee (appellant) Regina (respondent) JUDGMENT OF : Spigelman CJ at 1; Grove J at 2; Hidden J at 12 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/31/0481 LOWER COURT JUDICIAL Armitage DCJ OFFICER : COUNSEL : A Webb (appellant) M Grogan (Crown) SOLICITORS : Legal Aid Commission (appellant) Director of Public Prosecutions (respondent) CATCHWORDS : CRIMINAL LAW - Co-incidence evidence - adequacy of directions to jury - Recognition evidence - admissibility of out of court recognition from photos - Crown witnesses' evidence unfavourable LEGISLATION CITED : Evidence Act 1995 R v AH (1997) 42 NSWLR 702 Alexander v The Queen (1981) 145 CLR 395 R v Barbaro & Ors (1993) 67 ACrim R 456 Graham v The Queen (1998) 195 CLR 606 CASES CITED: R v McGuire [1975] 4 WWR 124 R v Mundarra Smith (1999) 47 NSWLR 419 Sutton v The Queen (1983-4) 152 CLR 528 R v Osbourne [1973] QB 678 R v Adam (1999) 47 NSWLR 267 DECISION : Appeal dismissed IN THE COURT OF CRIMINAL APPEAL 60772/98 SPIGELMAN CJ GROVE J HIDDEN J Friday 26 May 2000 REGINA v Stephen Robert GEE JUDGMENT 1 SPIGELMAN CJ: I agree with the orders proposed by Hidden J. As to the evidence of the Appellant's current de facto wife and of the de facto husband of the Appellant's daughter, I agree generally with the reasons of both Grove J and Hidden J. I specifically agree with Grove J that the evidence falls within the statutory definition of hearsay in s59(1) as a "previous representation". In this case, the evidence adduced falls within both the exceptions referred to: s66, to which Grove J refers and s60, to which Hidden J refers. IN THE COURT OF CRIMINAL APPEAL 60772/98 SPIGELMAN CJ GROVE J HIDDEN J Friday 26 May 2000 REGINA v STEPHEN ROBERT GEE JUDGMENT 2 GROVE J : I agree with the order proposed by Hidden J but wish to state my own reasons for rejection of ground 2 which asserted that there was error in admitting the evidence of acts of past identification by the witnesses Shane Goldsborough and Lee Paterson. 3 To recapitulate: Goldsborough was the de facto husband of the appellant's daughter and, when called by the Crown, gave evidence in chief that the man depicted in the security camera photographs looked like the appellant. Leave was given to cross examine him as an unfavourable witness. He denied earlier making a positive statement that it was the appellant depicted in the photographs to Detective Dawson. Detective Dawson was permitted to give evidence contradicting that denial. 4 Paterson was the appellant's current de facto wife. To the Crown Prosecutor in chief she said that the person depicted in the photographs was similar to the appellant. Leave to cross examine her was granted and she denied earlier saying that it was the appellant to Detective Stone. Detective Stone was permitted to give evidence contradicting that denial. 5 The thrust of argument in support of the ground was directed towards the admission of the evidence by the detectives. 6 In my view, the respective testimony of Detective Dawson and Detective Stone, whilst admissible at common law: see Alexander v The Queen 1981 145 CLR 395 per Mason and Aickin JJ; R v Barbaro & Ors 1993 67 A Crim R 456, must now be categorized as hearsay in the terms of s59 of the Evidence Act 1995 which provides: "59(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation". 7 The asserted fact is the identity of the appellant as the person depicted. 8 It is my further view, however, that the evidence was admissible by reason of the exception available pursuant to s66(2) of the Act namely: "66(2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by: (a) that person; or (b) a person who saw, heard or otherwise perceived the representation being made; if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation." 9 An issue arises as to what is required to be fresh in the memory in order to fulfil the requirements of the provision bearing in mind the necessity for fresh to be understood as recent or immediate: Graham v The Queen 1998 195 CLR 606. 10 In the case of recognition, what is fresh in the memory is the continuing familiarity with the features of the person depicted, in both these instances features of a de facto relation. Circumstances of recognition require distinction from those of identification where identification is made from previous encounter. In the latter case it would be the formation of the image, later drawn upon at the time of making the representation that the person depicted is identified, which is required to be fresh in the memory. The exception provided by s66(2) is available in these instances because of the peculiar qualities of recognition. 11 Finally, I would wish to reserve until it is necessary to decide the matter, whether the evidence of the early acts of expression of recognition by police officers should have been admitted. Whilst I accept that recognition is not, in the sense being now examined, affected by the passage of time, I can perceive that it may be argued that evidence of such early acts could legitimately be tendered to present a prosecution case in proper contextual continuity. IN THE COURT OF CRIMINAL APPEAL 60772 of 1998 SPIGELMAN CJ GROVE J HIDDEN J Friday 26 May 2000 Regina v Stephen Robert Gee Judgment 12 HIDDEN J: The appellant, Stephen Robert Gee, was tried in the District Court on five charges of armed robbery. He was acquitted by direction of the third count after the Crown prosecutor conceded that there was insufficient evidence to be left to the jury on that count. He was found guilty of the other four counts. He appeals against conviction only. 13 The robberies, committed on one occasion in a bank and on the other occasions in building societies, occurred between June and August 1997 in what might loosely be described as the Newcastle/ Lake Macquarie area. On each occasion the offender acted alone. The only issue in the trial was whether the appellant was that man. 14 In the course of the robberies the subject of the first, second, fourth and fifth counts, a security camera photographed the offender. There was evidence from witnesses who knew the appellant that he was the man depicted in the photos relating to the first, second and fourth counts. It will be necessary to refer to this evidence when dealing with the second ground of appeal. 15 There was no evidence identifying the man appearing in the photos relating to the fifth count, as they were generally of poorer quality and none of them afforded a clear view of the offender's face. On the other hand, there was a body of circumstantial evidence tending to link the appellant with that robbery. The offender was seen by witnesses to leave the building society and get into a car very similar to the car in which the appellant was arrested some hours later. Indeed, one witness observed, and correctly recorded, its number plate. When the appellant was stopped by police in that car, he was in the company of another man, Christopher McLean. Mr McLean gave evidence that, as the police approached them, the appellant asked him to say that he was in his company at the time of the robbery when, in fact, he was not. The appellant also gave him several hundred dollars, asking him to hold it for him. 16 There was further circumstantial evidence upon which the Crown relied in relation to all the counts. For example, descriptions by witnesses of the offender were consistent with the appearance of the appellant and clothing similar to that described by witnesses was found in his car and at his home. In addition, it was the Crown case that there were similarities between the robberies, including the manner in which each of them was committed, such as to permit evidence of each count to be used in proof of the others as coincidence evidence: s98 of the Evidence Act 1995. It is this last matter which gives rise to the first ground of appeal. 17 The appellant gave evidence in which he denied involvement in any of the robberies, as he had done in recorded interviews with police. He called evidence to the effect that his appearance at the time of the robberies was different from that of the offender described by the witnesses. No further examination of the defence case is necessary for the purpose of dealing with the grounds of appeal. Directions on coincidence evidence 18 Neither at the trial nor in this Court was it argued that the similarities between the offences were not sufficient to amount to coincidence evidence. The complaint on appeal was that the trial judge's directions to the jury about their approach to this evidence were inadequate. Those directions were couched by reference to the common law notion of "similar fact" evidence, but nothing turns on that for present purposes. What his Honour said was this: As to all four charges, the Crown relies upon the evidence of the very many witnesses who described the person who entered the bank or building society. The evidence as to that person's appearance, the Crown submits, is consistent with the accused's appearance. However, in addition to the accused's appearance, the Crown relies upon the manner in which of (sic) these robberies was carried out. In each case the modus operandi the Crown says was the same. In each case a tall male person of solid build, dressed in a very similar manner entered a bank or building society and approached a single teller. In each case an object resembling a firearm was displayed. In each case a verbal request for money was made. In each case that verbal request was made in a low tone of voice. In each case the robber left without fuss and each of the four robberies was committed within the same broad geographical area and within a comparatively short space of time. Those similarities the Crown submits are so striking that they prove beyond reasonable doubt that one offender was responsible for all four robberies. This sort of evidence members of the jury is sometimes referred to as similar fact evidence. I direct you as a matter of law that in a case such as this where the accused is being tried on one occasion for two or more similar crimes, in this case of course he is being tried for four, you are entitled to take into account the whole of the similar fact evidence as evidence rendering more likely the accused guilt (sic) of an individual offence of a similar character. I direct you that you cannot use similar fact evidence against the accused unless you are satisfied beyond reasonable doubt that the facts are indeed similar. The weight you attach to the evidence is a matter for you and the similar fact evidence must be considered in the light of all the other evidence. I must add this, it would be completely wrong to reason that because the accused has committed one crime, he is therefore the sort of person who would be likely to offend again. The evidence is admitted only because the similarities are such that you may be persuaded, because of those similarities, that it is more likely that the accused is guilty of an offence or offences of a similar character. As to all these alleged offences but in particular the robbery at Warners Bay, the Crown relies not only upon similar fact evidence, but also upon circumstantial evidence. As to those two types of evidence there is a certain degree of overlapping as similar fact is in itself a form of circumstantial evidence. The robbery at Warners Bay was the subject of the fifth count. 19 A little later in the summing-up his Honour dealt with circumstantial evidence generally, giving the conventional direction that the appellant must be found not guilty if there were any reasonable explanation of the evidence consistent with his innocence. In that context, his Honour returned to the coincidence evidence, reminding the jury of the various similarities between the robberies upon which the Crown relied. His Honour concluded that part of the summing-up as follows: I remind you that before an accused person may be found guilty of a crime on the basis of circumstantial evidence, you must be satisfied beyond reasonable doubt that such a finding is not only reasonable but that it is the only reasonable finding to make on the basis of all the evidence you have before you. 20 The complaint on appeal was that the directions about the coincidence evidence failed to convey two essential matters: (a) before the jury could find the appellant guilty on any of the counts on the basis of the propensity evidence, they would have to be satisfied beyond reasonable doubt of his guilt of at least one of the counts in the light of the evidence relating to that count alone; and (b) they would have to find similarities between that count and another or others so striking as to lead them to conclude, again beyond reasonable doubt, that the robberies were committed by the same offender. At this point, I should record that the Crown and the appellant were represented in this Court by counsel different from those who had appeared at the trial. Counsel then appearing for the appellant has considerable experience in this jurisdiction and, significantly, the matters raised by this ground of appeal were not the subject of any application by him for re-directions. 21 Generally speaking, directions of the kind contended for are necessary where the Crown relies upon coincidence evidence in proof of guilt. This Court has held that, in determining whether the test of admissibility for tendency or coincidence evidence established by s101(2) of the Evidence Act is met, guidance is to be found in the authorities dealing with "similar fact" or "propensity" evidence at common law: R v AH (1997) 42 NSWLR 702 per Ireland J at 709. The considerations governing admissibility of the evidence are, in turn, a guide to appropriate directions to the jury if it is admitted: Sutton v The Queen (1983-4) 152 CLR 528 per Dawson J at 563-4. 22 Viewed in isolation, the passage from the summing-up quoted at par 18 of these reasons fails to convey either of the matters referred to. As to the need to instruct the jury that they had to be satisfied that the similarities between the robberies were such as to lead to the conclusion that they were committed by one offender, however, it must be remembered that his Honour concluded that passage with the observation that coincidence evidence "is in itself a form of circumstantial evidence". As I have said, his Honour returned to this matter when dealing generally with circumstantial evidence and, at that point, gave the usual direction about drawing the inference of guilt from evidence of that kind. Presumably, the jury then understood that they could not conclude from the similarities between the offences that they were committed by the same man unless they were satisfied that it was the only inference reasonably to be drawn. 23 On the other hand, it does not appear that his Honour directed the jury at any stage that they could not conclude that the appellant was that man unless they were satisfied of his guilt of at least one of the counts on the evidence relating to that count alone. However, the fact that no such direction was sought may well be explained by the manner in which the case was conducted. A deal of the evidence led by the Crown was directed to the circumstantial case in respect of the fifth count. The summing-up suggests that counsel on both sides saw the evidence on that count as different from, and stronger than, the evidence relating to the others, and it appears to have been pivotal to their addresses to the jury. 24 Indeed, counsel for the appellant used the fifth count as the basis for an argument which sought to turn the notion of coincidence evidence to his advantage. He submitted that the identification evidence in relation to the first, second and fourth counts was unsatisfactory and that the circumstantial case in relation to the fifth count was inadequate. As his Honour summarised it, the argument then continued: As to the circumstantial case, the defence puts to you that if the accused did not commit the last robbery at Warners Bay, it would be impossible to find him guilty of the other robberies, and it would mean that some other person of similar appearance to the accused had been committing robberies in the general area. 25 In effect, then, it seems that the jury were invited to determine whether they were satisfied of the appellant's guilt in relation to the fifth count, in the light of the evidence referable only to it, before turning their attention to the others. This approach was reinforced by some directions his Honour gave at the end of the summing-up, which I do not find it necessary to set out, and at that point his Honour reminded the jury that they needed to consider each count separately and that their verdicts on the various counts need not necessarily be the same. 26 In any event, this was not a trial in which the Crown case was dependent upon coincidence evidence. Reliance was placed upon the similarities between the robberies but, at the end of the day, the Crown case turned primarily upon the identification evidence for the first, second and fourth counts and the circumstantial evidence referable to the fifth count. No doubt, this explains his Honour's observation to the jury, in the passage quoted at par 18, that they might find the accused's guilt "more likely" in the light of the similar fact evidence. Examining the summing-up as a whole, and in the light of the way in which the case appears to have been conducted, I am not persuaded that there is any deficiency in his Honour's directions giving rise to a miscarriage of justice. This ground is not made out. Recognition evidence 27 The appellant's former de facto wife, Ms Lea Walker, gave evidence identifying him as the person depicted in the security camera photos related to counts one, two and four. 28 Ms Lee Paterson, the appellant's current de facto wife, gave evidence that the person depicted in photos relating to count two was "similar to" the appellant. The Crown prosecutor was permitted to cross-examine her under s38 of the Evidence Act, and it was put to her that she had positively identified the man in those photos as the appellant when they were shown to her by one of the police officers involved in the investigation, Detective Senior Constable Mark Stone. She denied having done so, although she did say that she had whispered to herself, "That's him". Detective Stone gave evidence that she had positively identified the appellant in the photos. 29 Mr Shane Goldsborough, the de facto husband of the appellant's daughter, gave evidence that the man depicted in photos relating to all three counts looked "a bit like" the appellant. He also was cross-examined by the Crown prosecutor, and it was put to him that he had expressed no doubt that the man in the photos was the appellant when he was shown them by Detective Senior Constable Wayne Dawson. Mr Goldsborough denied this. Detective Dawson gave evidence that he also had made a positive identification. 30 The evidence that Ms Patterson and Mr Goldsborough identified the appellant when first shown the photos was objected to at the trial, and its admission is the subject of the second ground of appeal. It was submitted that evidence of those earlier acts of identification, having been denied by the two witnesses in the trial, was inadmissible. Alternatively, it was argued that, even if it were admissible, its probative value was so slight that his Honour ought to have exercised his power under s137 of the Evidence Act to reject it. 31 Counsel for the appellant in this court relied upon R v McGuire [1975] 4 WWR 124, a decision of the British Columbia Court of Appeal which was referred to with approval by Gibbs CJ in Alexander v The Queen (1980-81) 145 CLR 395 at 407. In McGuire two prosecution witnesses, who had identified the appellant to police, denied in evidence at the trial that he was the man whom they had seen on the occasions in question. The Crown led evidence of their earlier acts of identification, and that evidence was left to the jury in support of the Crown case that the appellant was the offender. 32 The Court of Appeal held that evidence of those acts of identification was inadmissible and, having been led, the jury should have been told to disregard it. Robertson JA, who delivered the judgment of the court, referred to a passage in Wigmore on Evidence in which it was said that, where a witness identifies an accused in court, it is proper to prove that he also identified that person at an earlier time in circumstances rendering that identification more reliable. His Honour continued (at p130): From this it appears that, where a person under oath identifies an accused at a trial, his statement may be supported by evidence that the person had identified the accused on an earlier occasion. It is, however, elementary that, if the person does not himself give evidence, evidence of his earlier identification cannot be given. By the same token, if at the trial the person does not identify the accused, evidence that he did identify him on an earlier occasion cannot be admitted except by way of cross-examination of the person himself as to credibility, and even then is not evidence of the content of the earlier statement. 33 In other words, the court treated the earlier acts of identification simply as prior inconsistent statements by the witnesses, governed by the common law rule that they went only to credibility and were not evidence of the facts asserted. For the same reason, the court was of the view that it was not open to the Crown to lead that evidence from the witnesses unless they had been declared hostile: Robertson JA at 132. 34 The court's conclusion was founded upon the proposition that evidence of an out of court act of identification by a witness is admissible only to afford weight to that witness' identification of the accused in court: as Gibbs CJ put it in Alexander (at 406) "… to show that the identification made by the witness in court was not an afterthought or a mistake". On the other hand, in Alexander Mason J concluded that evidence of an out of court identification, subject to discretionary considerations which might arise from the circumstances in which it was made, was admissible in any event. His Honour said (at 427): For my part, I see no violation of the hearsay rule, nor do I think it necessary to resort to the doctrine of recent contrivance to sustain the admission of the evidence. In my opinion an identification made out of court by a person qualified to make it is admissible in evidence, subject to qualifications later to be mentioned. This is because an identification out of court, being earlier in time and made under circumstances which involve a selection in the absence of any compulsion, is more likely to be reliable than an identification made in court. 35 Later, his Honour referred to R v Osbourne [1973] QB 678, in which it was held that evidence from a police officer that two witnesses identified the accused at an identification parade was correctly admitted, even though at the trial those witnesses did not recall having made that identification and one of them was unable to identify the accused in court. Of that case Mason J said (at 432-3): The Court proceeded according to the view, which in my opinion is correct, that the reception of such evidence does not violate the hearsay rule or the best evidence rule. It is the act of identification that is relevantly in issue. An observer of the act may give evidence of it. Obviously the weight to be given to this evidence varies with the circumstances . . . 36 This was the view adopted by this Court in R v Barbaro & Ors (1993) 32 NSWLR 619. The leading judgment was delivered by Carruthers J, with whom Campbell and Ireland JJ agreed. His Honour arrived at that view after a careful examination of Alexander and other authorities, including McGuire, at 627-34 of the report. Accordingly, it now appears to be settled law in New South Wales that evidence of an out of court identification is admissible (subject to considerations of its reliability and of fairness to the accused) because that act of identification is itself relevant and, indeed, is likely to have much more probative value than an identification in court. The evidence is admissible whether or not the identifying witness adheres to that identification in court. 37 That said, the evidence with which this ground of appeal is concerned is not identification evidence as that term has generally been understood in the criminal law. "Identification evidence" is defined in Part 1 of the Dictionary to the Evidence Act 1995 as follows: identification evidence means evidence that is: (a) an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where: (i) the offence for which the defendant is being prosecuted was committed; or (ii) an act connected to that offence was done; at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw or heard at that place and time; or (b) a report (whether oral or in writing) of such an assertion. Broadly speaking, this is consistent with the concept of identification evidence at common law although, in so far as it includes an assertion merely of resemblance and embraces observations by senses other than sight and hearing, it may be somewhat wider: see the article by his Honour, Judge Howie QC in (1996) 3 Crim LN 13 [543]. 38 The present case is concerned with a different type of evidence: the recognition by witnesses in photographs of a man previously known to them. Evidence of that kind was examined by this Court in R v Mundarra Smith (1999) 47 NSWLR 419, although that case was not concerned with the precise question which arises here. It involved an armed robbery at a bank, during which the offenders were photographed by a security camera. Evidence was admitted of police officers, to whom the appellant was known, identifying him as one of the persons appearing in the photos. It was held that the evidence was rightly admitted. Sheller JA, with whom Grove J and I agreed, concluded that the evidence was not identification evidence for the purposes of the Evidence Act, so as to attract the provisions of Part 3.9 of that Act, and it was not opinion evidence within the meaning of s76. 39 In that case evidence was led that the police officers identified the appellant in the photos when they were shown them about a week after the robbery. No point was taken about that on appeal but, upon reflection, I consider that that evidence should not have been led. Recognition of a person known to the witness is not affected by the passage of time. The primary evidence of a witness' recognition of a person in a photo is that witness' testimony in court, and that evidence is afforded no greater weight by the fact that the witness also recognised the person when shown the photo at some earlier time. Nor is the reliability of the evidence reduced because of the presence of the accused in court at the time it is given. 40 This is not to deny that recognition evidence may have its weaknesses, as Sheller JA pointed out in Mundarra Smith at par 23, and the circumstances of a particular case may call for appropriate directions. In the present case his Honour gave directions, about which no complaint has been made. 41 Evidence of recognition on an occasion out of court would become admissible only if, as in this case, developments at the trial made it relevant. In evidence, Ms Paterson and Mr Goldsborough would say no more than that the man depicted in the security camera photos resembled the appellant. Having been given leave to cross-examine them, the Crown prosecutor was entitled by s43(1) of the Evidence Act to put to them that they had earlier made positive identifications of the appellant. When they would not admit having done so, the prosecutor was entitled to call evidence from police officers that they had: s43(2). By virtue of s60 of the Act, the jury were entitled to treat that as evidence that they had indeed recognised the appellant: R v Adam (1999) 47 NSWLR 267 at par 110ff. Accordingly, the evidence was admissible and I can see no basis upon which it should have been rejected under s137 of the Act. This ground of appeal also fails. 42 Since preparing these reasons, I have had the benefit of reading in draft the brief judgments of Spigelman CJ and Grove J. Whatever be the ambit of s66 of the Evidence Act, I doubt that it is applicable to the present case. It does not appear to me that a witness' recognition of a person in a photo could be described as an "asserted fact", the occurrence of which was "fresh in the memory" of the witness at that time. However, there is no need to express a concluded view about the matter. 43 I would propose that the appeal be dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.