Reported Decision : 47 NSWLR 419 New South Wales Court of Criminal Appeal CITATION : REGINA v SMITH [1999] NSWCCA 317 FILE NUMBER(S) : CCA 60555/98; 60261/99 HEARING DATE(S) : 16 September 1999 JUDGMENT DATE : 21 October 1999 PARTIES : Regina v Mundarra Smith JUDGMENT OF : Sheller JA at 1; Grove J at 27; Hidden J at 28 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0742 LOWER COURT JUDICIAL OFFICER : Latham DCJ COUNSEL : M Austin - Appellant M M Cunneen - Crown SOLICITORS : Sydney Regional Aboriginal Corporation Legal Service - Appellant S E O'Connor - Crown CATCHWORDS : CRIMINAL LAW - robbery - conviction - appeal on ground of wrongful admission of evidence - no error of law in admitting evidence; EVIDENCE - identification of accused by police officers from still pictures - whether opinion evidence - not opinion evidence but direct evidence that person in picture was the accused ACTS CITED : Evidence Act 1995 R v Palmer (1981) 1 NSWLR 209 R W Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 34 NSWLR 129 CASES CITED: Allstate Life Insurance Co Ltd v Australian and New Zealand Banking Group Ltd (No 5) (1996) 64 FCR 73 Domican v The Queen (1992) 173 CLR 555 Alexander v The Queen (1981) 145 CLR 395 House v The King (1936) 55 CLR 499 DECISION : Appeal dismissed IN THE COURT OF CRIMINAL APPEAL 60555/98 60261/99 SHELLER JA GROVE J HIDDEN J REGINA v Mundarra SMITH The appellant was found guilty of robbery from a bank and sentenced to a minimum term of 3 years and 10 months penal servitude. During the trial evidence of several police officers who had identified the appellant from still pictures developed from the bank's security camera film was admitted. The appellant appealed on the grounds that the identification evidence from the police officers should have been excluded because it was opinion evidence of a kind which a jury should not have taken into consideration in criminal proceedings, and that the conviction was unreasonable and could not be supported having regard to the evidence. Held: By Sheller JA, Grove and Hidden JJ agreeing: (1) If a distinction must be made between fact and opinion evidence it could only be one of degree, calling for a decision as to whether, on a continuum which was unmarked and for which there was no exact measure, particular testimony had past the point where it had become evidence of an opinion. (2) The question posed by s76 of the Evidence Act 1995 did not require a determination which started by dividing evidence between evidence of opinion and evidence of fact. The question was whether particular evidence was evidence of an opinion within the meaning of the section. (3) To a witness who knew a person well enough to recognise that person on sight, there was no more inference involved in recognising that person as the person whose face was shown in a photograph than there was in recognising the same person when meeting him in the street. The evidence may be mistaken in either case, but even so it remained direct evidence of the fact that the person shown in the photograph or met in the street was a particular person. (5) The evidence given by the police officers was not evidence of opinion but was direct evidence that a person shown in the photograph was the accused. As such it was not excluded by s76 of the Evidence Act. Legislation Evidence Act 1995 Cases R v Palmer (1981) 1 NSWLR 209 R W Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 34 NSWLR 129 Allstate Life Insurance Co Ltd v Australian and New Zealand Banking Group Ltd (No 5) (1996) 64 FCR 73 Domican v The Queen (1992) 173 CLR 555 Alexander v The Queen (1981) 145 CLR 395 House v The King (1936) 55 CLR 499 ORDER Appeal dismissed. ***** IN THE COURT OF CRIMINAL APPEAL 60555/98 60261/99 SHELLER JA GROVE J HIDDEN J Thursday, 21 October 1999 REGINA v Mundarra SMITH JUDGMENT 1 SHELLER JA: The appellant, Mundarra Smith, was indicted on 27 August 1998 before her Honour Judge Latham at the Sydney District Court on the charge that on 26 June 1997 at Caringbah, being in company with others, he robbed Bradley Michael Street and Lara Christina Phelan and others of the sum of $16,600 in money, the property of the National Australia Bank Limited. The appellant pleaded not guilty and was tried before her Honour and a jury of eleven in a joint trial with Jason Wayne Nicholas. 2 On 1 September 1998 the jury returned a verdict of guilty. On 29 April 1999 the appellant was sentenced for the offence to a minimum term of three years and ten months penal servitude to date from 24 January 1999 and to expire on 23 November 2002 and an additional term of three years and two months to commence on 24 November 2002 and expire on 23 January 2006. The sentences were to be served concurrently with other sentences imposed by her Honour on the same date. 3 In summary, the Crown case was that at about 12.25 pm on 26 June 1997 four males entered the National Australia Bank at Caringbah. One jumped the counter and struggled with a bank officer before pushing him out of the way. The offender said he had a gun and ordered the bank employees on to the floor. The offender opened the staff door letting in two other males, one of whom, allegedly the appellant, stayed on the customer side of the bank acting as a lookout and waiting near the front door. The security screens activated and the offenders who were in the staff area yelled at the tellers to open the cash drawers. They also tried to force the drawers open with a screw driver. After money had been removed, the four left the bank, fleeing to a stolen Commodore station-wagon. 4 Still pictures were developed and enlarged from the bank's security camera film. Photographs depicted a male standing near the door, dressed in a hooded jacket. On 4 July 1997 police officers viewed some of the photographs and identified the appellant as the person near the door. Police later showed bank employees and other witnesses of the robbery a video compilation of males faces, including the appellant but none identified the appellant. 5 On 24 July 1997 police spoke to the appellant at Redfern police station where he took part in an interview, which was electronically recorded, and agreed to take part in an identification parade, which was not held. He was charged that day. 6 At the beginning of the trial the Crown indicated it wished to tender photographs taken by the bank's security camera of the four persons in the bank and evidence of police officers, Constable Crampton who recognised the appellant in two of the photographs he was shown, Constable Peterson who recognised the appellant in two of the photographs he was shown and Constable Trevallion, who recognised the co-accused in two of the photographs he was shown. The Crown also put in evidence a photograph of the appellant at the time of his arrest. The appellant was present in court during the course of his trial. The Crown said that apart from that evidence there was little other evidence connecting the appellant with the crime. 7 On 31 August 1998 an application was made that the evidence of the police officers should be excluded in reliance upon ss135 and 137 of the Evidence Act 1995 (the Act). Section 137 provides that in a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. 8 Counsel for the co-accused Nicholas isolated six aspects of the identification evidence which taken together, he submitted, weakened its probative value to the extent that it was outweighed by its prejudicial effect. Those six aspects were: 1. That Constable Trevallion's identification occurred in a police station from photographs so that the accused had no opportunity to observe and therefore test the identification process. 2. That the identification was a manifestation of an inherent predisposition in a police officer to identify a person known to him. 3. That the identification was not based on any specific feature of Nicholas. 4. That only two photos were the subject of the identification and that the view of the accused's face in these two photos was limited. 5. That no explanation had been given to the apparent failure to show the photos to other police who had worked with Constable Trevallion. 6. That to test the identification evidence his cross-examination would necessarily reveal his client's prior association with police. 9 Counsel for the appellant adopted those submissions and in addition relied upon s76 of the Act to submit that the constables concerned were really giving lay opinion evidence. Counsel further submitted that s78 did not render it admissible. 10 In the circumstances, Judge Latham was not persuaded that the prejudicial effect of the identification evidence outweighed its probative value. In reaching that conclusion her Honour said she was mindful of the capacity of directions to minimise any prejudice flowing to the accused from the fact that they were apparently well known to police officers who worked at Redfern in the relevant period. The probative value of the evidence on the other hand was high. 11 To the extent that the identification evidence suffered from the frailties referred to in aspects 3 and 4 her Honour said these could be cured by the appropriate directions or warnings. Assuming for the purposes of argument that the evidence of the police officers could be characterised as opinion evidence, her Honour concluded that it was evidence which came within s78 of the Act and that accordingly it was admissible. 12 The evidence of the police officers was admitted and the appellant convicted. The appellant appeals on two grounds: 1. The identification evidence from the police officers should have been excluded. This was opinion evidence of a kind which the jury should not have taken into consideration in criminal proceedings. 2. The convictions were unreasonable and could not be supported having regard to the evidence. 13 Mr Austin, who appeared for the appellant, began his argument by taking the Court to the definition of "identification evidence" in Pt 1 of the dictionary to the Act. Relevantly identification evidence means evidence that is 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 the offence for which the defendant is being prosecuted was committed or 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 was based wholly or partly on what the person making the assertion saw or heard at that place and time. Evidence by a witness identifying a person in a photograph to be a person the witness knows clearly does not fall within this definition. The result is that Pt 3.9 "Identification evidence", and in particular s115 "Exclusion of evidence of identification by pictures", does not apply. 14 Next counsel submitted that, since the evidence was not identification evidence as defined, the evidence could only be admitted in accordance with the opinion rule, that is to say s76. That section provides: "Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed." 15 Before coming to consider the application of that section and statutory exceptions to it in ss77-80, it is helpful to consider what is meant in this Part of the Act by the expression "Evidence of an opinion" or, perhaps, what the expression does not embrace. 16 To characterise as evidence of an opinion a witness's testimony that he recognises a person shown in a photograph as a person he knows presents an obvious problem. Logically, what is the difference between that evidence and that witness's evidence that he recognises somebody he met in the street as a person he knows? If a witness is shown a studio photograph of his spouse, who lives with the witness, and gives evidence that the person shown in the photograph is the witness's spouse, commonsense and common use of language would not treat that as an expression or evidence of opinion but as direct evidence of the fact: "that is a photograph of my wife". Compare R v Palmer (1981) 1 NSWLR 209 at 213. 17 In the context of the rule, which has traditionally excluded opinion evidence, any useful definition of "opinion" has proved difficult. In R W Miller & Co Pty Limited v Krupp (Australia) Pty Limited (1991) 34 NSWLR 129 at 130 Giles J, as his Honour then was, observed that the distinction between fact and opinion, and what is opinion evidence, are not particularly clear, "but for present purposes I think opinion evidence can be described as evidence of a conclusion, usually judgmental or debatable, reasoned from facts." Typically a person of a particular skill or training, such as a medical practitioner, will give evidence based on history, symptoms and examination about the health of a patient. That is understood as opinion evidence based on factual material or on assumptions consisting of history, symptoms and the results of examination. In Allstate Life Insurance Co Limited v Australian and New Zealand Banking Group Limited (No 5) (1996) 64 FCR 73 at 75 Lindgren J, referring to the opinion rule in the Evidence Act of the Commonwealth, said: "The expression 'opinion' is not defined in the Act. In the context of the general law of evidence, 'opinion' has been defined as 'an inference from observed and communicable data': J D Chadbourn (Ed), Wigmore on Evidence, (1978), vol 7, para 1917; and see Cross on Evidence (5th Australian Edition, 1996), p 782 para 29010; Australian Law Reform Commission, Interim Report on Evidence (ALRC 26, 1985), vol 2, pp 168-169 para 96." 18 In the edition of Wigmore referred to at para 1919 the author makes the point that no distinction between "opinion" testimony and "fact" testimony is scientifically possible. "We may in ordinary conversation roughly group distinct domains for 'opinion' on the one hand and 'fact' or 'knowledge' on the other; but as soon as we come to analyse and define these terms for the purpose of that accuracy which is necessary in legal rulings, we find that the distinction vanishes, that a flux ensues, and that nearly everything which we choose to call 'fact' either is or may be only 'opinion' or inference." 19 If a distinction must be made it can only be one of degree, calling for a decision as to whether, on a continuum which is unmarked and for which there is no exact measure, particular testimony has past the point where it has become evidence of an opinion. In a passage which Wigmore quoted as "the most careful attempt to justify the distinction", Sir George Cornewall Lewis in Influence of Authority in Matters of Opinion 1 (1849) gave the following guide: "It is true that even the simplest sensations involve some judgment; when a witness reports that he saw an object of a certain shape and size or at a certain distance, he describes something more than a mere impression on his sense of sight, and his statement implies a theory and explanation of a bare phenomenon. When, however, the judgment is of so simple a kind as to become wholly unconscious, and the interpretation of the appearances as a matter of general agreement, the object of sensation may, for our present purpose, be considered a fact." 20 In Cross, 5th Australian edition, at 781 and following the learned editor emphasises the attractive but deceptive simplicity of the proposition that witnesses must state facts not opinions. At para 29015 it is said: "Although the distinction between facts and inference is clear enough, the evidence given by a witness is neither fact nor inference. What the witness utters in each case is a statement about a fact or series of facts. These facts have been processed through the witness' mind via perception, classification, recollection and utterance. ……it will be recognised that statements concerning speed, or temperature, or the identity of persons, things and handwriting are indissolubly composed of fact and inference. The law makes allowance for these borderline cases by permitting witnesses to state their opinion with regard to matters not calling for special knowledge whenever it would be virtually impossible for them to separate their inferences from the facts on which those inferences are based." 21 The question posed by s76 does not require a determination which starts by dividing evidence between evidence of opinion and evidence of fact. The question is whether particular evidence is evidence of an opinion within the meaning of the section. The appellant's submission is that the police officer giving evidence about the photograph was doing no more than infer identity from observed and communicable data. 22 It is not difficult to see that evidence about what a photograph shows may involve using a special knowledge to draw an inference from what can be seen in the photograph. But, to a witness who knows a person well enough to recognise that person on sight, there is no more inference involved in recognising that person as the person whose face is shown in a photograph than there is in recognising the same person when meeting that person in the street. The evidence may be mistaken in either case, for example, if the person recognised is an identical twin. But even so it remains direct evidence of the fact that the person shown in the photograph or met in the street is a particular person. 23 The dangers of reliance on identification evidence are well known; see Domican v The Queen (1992) 173 CLR 555 particularly at 560 and following. But evidence of the sort here under consideration proceeds on the basis that the witness had previously known the person identified well enough to recognise that person on sight and then looked at a photograph and given evidence about what the photograph showed. The clarity or otherwise of the photograph and the resemblance of the person depicted to the person recognised is there for the jury to see. That is not to say that there are not dangers but the weaknesses of the recognition are more exposed and to that extent the dangers reduced. It is quite different from the photo identification procedure by which someone who has seen a suspected offender but cannot put a name to him is shown photographs of persons known to others, usually the police, and by recognising one of them as the suspected offender, identifies him; compare Alexander v The Queen (1981) 145 CLR 395. 24 The evidence given by the police officers was not evidence of an opinion but was direct evidence that a person shown in the photograph was the accused. As such it was not excluded by s76 of the Act. Accordingly, there is no need to consider the application of s78 or other statutory exceptions to the opinion rule. 25 The appellant's counsel submitted that the trial Judge should in her discretion have excluded the police evidence about the photographs. Counsel relied on the six matters put to the trial Judge which I have listed and additionally upon what was said to be the danger of jury members substituting the opinion of the witness for their own. But nothing was put to demonstrate any error in her Honour's exercise of discretion; see House v The King (1936) 55 CLR 499 at 504-5. Her Honour paid due regard to the various matters put to her and exercised her discretion accordingly. It was well open to her Honour to conclude that the probative value of the police evidence about the photographs outweighed the danger of unfair prejudice to the appellant; compare ss135 and 137 of the Act. In my opinion, the first ground of appeal fails. 26 On the second ground the appellant submitted that the photographs relied upon were not of a quality capable of basing an identification. This argument did not rise above assertion. The Crown submitted that the photographs were of sufficient quality to be admissible. No argument developed before us persuades me that the convictions were unreasonable or could not be supported having regard to the evidence. In my opinion, this ground of appeal also fails and accordingly, the appeal should be dismissed. 27 GROVE J: I agree with Sheller JA. 28 HIDDEN J: I agree with Sheller JA. ****** 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.