Reported Decision : 113 A Crim R 190 New South Wales Court of Criminal Appeal CITATION : REGINA v MARSHALL [2000] NSWCCA 210 FILE NUMBER(S) : CCA 60474/99 HEARING DATE(S) : 15 May 2000 JUDGMENT DATE : 15 May 2000 PARTIES : Regina v Robert John Marshall JUDGMENT OF : Spigelman CJ at 1,41,42,55; Heydon JA at 40,53; James J at 39,54 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 96/41/0267; 96/41/0268 LOWER COURT JUDICIAL Twigg DCJ OFFICER : COUNSEL : G P Craddock (Appellant) L M B Lamprati (Respondent) SOLICITORS : T A Murphy (Appellant) S E O'Connorr (Respondent) CATCHWORDS : EVIDENCE - exclusion of identification evidence when accused seen to be in custody - displacement effect - Evidence Act 1995, s137 - CRIMINAL LAW - sentencing - correct application of totality LEGISLATION CITED : Crimes Act 1900 Evidence Act 1995 Alexander v The Queen (1979-1980) 145 CLR 395 CASES CITED: R v Blick [2000] NSWCCA 61 R v Carusi (1997) 92 A Crim R 52 R v Tugaga (1994) 74 A Crim R 190 DECISION : Appeal against conviction allowed; Verdict of acquittal entered; Leave to appeal against sentence granted, but appeal dismissed IN THE COURT OF CRIMINAL APPEAL 60474/99 SPIGELMAN CJ HEYDON JA JAMES J Monday 15 May 2000 REGINA v Robert John MARSHALL Appeal against conviction allowed; verdict of acquittal entered. Leave to appeal against sentence granted, but appeal dismissed. IN THE COURT OF CRIMINAL APPEAL 60474/99 SPIGELMAN CJ HEYDON JA JAMES J Monday 15 May 2000 REGINA v Robert John MARSHALL JUDGMENT 1 SPIGELMAN CJ: The Appellant was convicted after a plea of not guilty on a charge of armed robbery with a knife, contrary to s97 (1) of the Crimes Act 1900. The Appellant had elected to be tried by judge alone. Judge Twigg QC DCJ found the Appellant guilty on 11 December 1998. 2 The alleged offence occurred on 2 September 1995 at Bomaderry when the victim, Mr Frederick Robert Sams, the proprietor of a liquor shop at Bomaderry, was robbed of about $1,400 in cash. 3 The events of that evening commenced with a male person entering the shop and looking at various items on the shelf. Mr Sams gave evidence this man was wearing a grey coloured flannelette shirt with a hood which enclosed his head so only the face at the front was visible. 4 After looking around the shop, that male person left, having engaged in a brief conversation with Mr Sams. 5 About an hour later on that same evening, another male entered the shop. This person had a goatee type beard and moustache, which Mr Sams said was similar to the first male. Indeed, Mr Sams said, the two males "could almost be twin brothers". He confirmed in his evidence in the case that "they looked the same". 6 On the second occasion, the man produced a knife from behind his back. Mr Sams said that he could see it was shiny with a clean edge of about 20 cms in length. The handle appeared to be black. Mr Sams said that the man forced the knife against the victim's chest and threatened him unless he opened the till. Mr Sams had a opportunity to see his assailant, albeit in circumstances which induced significant fear. As the second man left the store with the money, Mr Sams noticed the first male was standing alone outside the front door with his back to him and the hood still over his head. The two then ran away from the shop. These events occurred on 2 September 1995. 7 On 5 September 1995, Detective Whitehall, the officer in charge of the case, invited Mr Sams to come to the police station. At the station he examined photographs. Mr Sams did not recognise anyone depicted in those photographs. In fact, as subsequently emerged, but to which no reference was made in Detective Whitehall's original statement, the photographs shown to Mr Sams at that time included "two or three" photographs of the Appellant. 8 Later on that same day, 5 September, the Appellant was arrested with respect to other matters. He was found in possession of a large serrated edge knife. Detective Whitehall called Mr Sams to the police station in order to see if he could identify the knife. During that period, Detective Whitehall went with the Appellant to his premises where a search was conducted. Although the police searched for clothing matching the description given by Mr Sams, neither those clothes, nor any other evidence implicating the Appellant in the robbery, was found. 9 When Detective Whitehall and the Appellant returned to the station, by reason of the construction work going on, they entered through the area where Mr Sams was in attendance standing at the counter and inspecting the knife. Mr Sams said that he identified the Appellant as the same person who had pointed the knife to his chest and stolen the money from him. He said in his evidence he had made the identification at first to Senior Constable Keith with whom he was talking and who later went and fetched Detective Whitehall. Mr Sams then repeated the identification. Senior Constable Keith, however, failed to confirm that any identification was made to him. 10 When Detective Whitehall brought the Appellant through the police station, the Appellant was in fact handcuffed with some cloth, perhaps a t-shirt, draped over the handcuffs. 11 However, in his evidence, Mr Sams expressed an opinion that it was obvious that the person was in custody, and indeed he was in the custody, or appeared to be in the custody of the very detective whom Mr Sams then knew was conducting the investigation. I should note Detective Whitehall expressed the same opinion, that it would have been obvious to any person that the Appellant was at that time in custody. 12 It is clear that without the identification on the part of the victim the police had no case against the Appellant. The sole issue in the case was identification. 13 The issue was raised on a voir dire to determine whether or not the victim's evidence of identification should be excluded, particularly under s137 of the Evidence Act 1995 which provides: "In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecution if its probative value is outweighed by the danger of unfair prejudice to the defendant". 14 His Honour, in his judgment on the voir dire, recognised the well known difficulties with identification evidence and the obligation to direct a jury - in the present case, relevantly, to direct himself - with respect to those dangers. His Honour outlined the facts of the case as they had been presented to him for the purpose of the voir dire and, in the event, admitted the evidence. His Honour found that the evidence of identification had "high probative value". However, he also found that the accused was not prejudiced in any way other than in the respect that all evidence that might lead to conviction is prejudicial. 15 The prejudice often associated with identification evidence is that, although mistaken, it is frequently given with great force and assurance by the person who made the identification. These are matters about which witnesses frequently refuse to admit the possibility that they might have erred and, accordingly, give evidence in a particularly definitive form. 16 It appears that his Honour was impressed by the way Mr Sams gave the evidence of identification and indeed made reference to Mr Sams' demeanour. However, it is the experience of the Court with respect to identification, that demeanour can be misleading. 17 The factual issues which were before his Honour at the time of the voir dire concerned the circumstance that the victim had said that the two individuals were virtually of identical appearance. Furthermore, there was evidence that, at the relevant time, the Appellant did not have a goatee beard, as the armed robber was said to have had. 18 There are two grounds of appeal. The first is that his Honour erred in admitting the evidence of identification. The second is that there was a miscarriage of justice. 19 The first ground of appeal proceeded on the basis of material that was before his Honour at the time of the voir dire. The second ground of appeal introduced the additional elements going to the admissibility of the identification evidence which emerged during the conduct of the trial. 20 In the course of his reasons on the voir dire, Twigg DCJ said: "It is clear from the report of the Australian Law Reform Commission that a trial judge in criminal cases has a discretion to exclude evidence if it is more prejudicial than probative. There are some matters of concern in relation to the exercise of this discretion. On my understanding I must balance the probative value of the evidence against the danger of prejudice or the possibility of an unfair trial without any preconceptions." 21 His Honour's reference to the "discretion" is in error. As Sheller JA pointed out in R v Blick [2000] NSWCCA 61 at [20]: "... there seems to me to be a risk of error if a judge proceeds on the basis that he or she is being asked to exercise a discretion about whether or not otherwise admissible evidence should be rejected because of unfair prejudice to the defendant. The correct approach is to perform the weighing exercise mandated. If the probative value of the evidence adduced by the prosecutor is outweighed by the danger of unfair prejudice to the defendant, there is no residual discretion. The evidence must be rejected." 22 The written submissions in this case proceeded on the basis that the admissibility of the evidence was to be determined in accordance with the material before the trial judge on the voir dire. In a sense that may be so. That does not, however, mean that the trial judge is not obliged to revisit the issue as and when the factual assumptions upon which his decision on the voir dire was based, prove to be incorrect. 23 Hunt CJ at CL with whom Gleeson CJ and Abadee J agreed said in R v Tugaga (1994) 74 A Crim R 190 at 193-194: "It is also always open to the trial judge in the appropriate case to withdraw evidence of identification from the jury's consideration where, after it has been given, its quality has been demonstrated to be such that its probative value is outweighed by its prejudicial effect. ... The occasion for its exercise would usually be where the weakness of the evidence (and thus its disproportionate prejudice) had not been established in any voir dire examination, although it would not depend upon whether such an examination had been held; or it may arise simply because the judge had altered a conclusion formed upon an earlier objection, although again it would not depend on whether there had been such an earlier objection." 24 In the course of his reasons on the voir dire, Twigg DCJ referred to the occasion on which the Appellant, together with Detective Whitehall entered the police station at the time of which the first identification was made. His Honour said: "It is true to say that that was in a situation where it was a police station and that the person the accused was walking with was the police, there is no suggestion that he was being restrained or that he was handcuffed or in any way giving the appearance of being under arrest. It may well be that that sort of evidence might come out if there is oral evidence before me." 25 Indeed, that event transpired. Detective Whitehall agreed in cross-examination that the accused was in fact handcuffed. Both Mr Sams and Detective Whitehall, as I have indicated above, agreed that it was obvious that the Appellant was at that stage in custody. 26 Accordingly, the danger of unfair prejudice from an identification, which often arises where such identification is made in circumstances in which the person being identified appears to be suspected of, or to have been charged with, a crime, existed in this case. 27 Perhaps even more significantly, the evidence at the trial, but not before the trial judge on the voir dire, created the situation which is often eferred to as a "displacement effect". 28 As indicated above, Mr Sams had himself seen two or three photographs of the accused that morning. It is of some significance for present purposes that he did not identify the Appellant from those photographs. Of determinative significance, in my opinion, is the possibility that when Mr Sams made the identification of the Appellant at the police station, he was in fact recalling, no doubt subconsciously, the features of the photographs he had been shown that morning, rather than the features of the person who had committed the robbery. This, of course, is the displacement effect. 29 This is a clear example of the dangers of identification evidence. It has been identified in numerous authorities. I give one example. In Alexander v The Queen (1979-1980) 145 CLR 395 at 409 Stephen J said: "Lastly, there is the 'displacement effect'. Having been shown a photograph, the memory of it may be more clearly retained than the memory of the original sighting of the offender and may, accordingly, displace that original memory. Any subsequent face-to-face identification, in court or in an identification parade, may, on the identifying witness's part, in truth involve a matching of the man so identified with the remembered photograph, which has displaced in his memory his recollection of the original sighting." 30 See also per Mason J at 426; and R v Carusi (1997) 92 A Crim R 52 at 55 per Hunt CJ at CL. 31 In these circumstances, the probative value of the identification is diminished. No application was made to his Honour to revisit the question of admissibility. His Honour went on, in the course of his trial judgment, to warn himself about the dangers of identification evidence, and his Honour made reference in the course of his final judgment to: "The highly suggestive circumstances of the identification in the police station, that is whether it is akin to a court room identification with the likelihood of the person in custody being the offender is suggested by the circumstances." 32 This was no doubt a reference to his Honour's factual finding earlier in the final judgment on the basis of the evidence that was before him that: "The accused was handcuffed in front of his body although he had a t-shirt loosely covering his hands and the handcuffs". 33 During the course of his final judgment, his Honour made reference to the fact that the prosecutor had conceded in his final submissions that: "The Crown case was not as favourable to the prosecution as it was at the end of the voir dire". 34 His Honour went on to explain this concession in the following manner: "He was referring to the fact that during the voir dire the evidence was that the victim was shown a bundle of photos after the accused had declined the option of an identification parade. But it was said that these photographs did not include a photo of the accused. The evidence during the trial disclosed that the bundle of photographs did indeed contain at least two photos of the accused. The inference to be drawn from that submission is that the victim did not identify the accused from photos". 35 His Honour's reasoning in this respect is too narrow. It is not simply the failure to identify the accused, which has to be weighed in the balance in assessing the subsequent act of identification. Of more significance is that this action of showing photographs to the person who subsequently made the identification created the possibility of a displacement effect. His Honour makes no reference in his reasons to this issue of displacement. In this, I believe, his Honour erred. 36 The evidence of identification of the knife was equivocal if not contradictory. No other evidence connected the accused to the crime, other than the identification by Mr Sams. 37 In the light of the evidence, both of the adverse effect from identifying a person in custody, and in this case, the displacement effect - either effect often being enough - this is an unusual case. It is unusual to find the co-existence of both of these distorting effects in an identification case. 38 In my view, by reason of that combination and the absence of any other evidence, the identification evidence was of limited probative value and of a high order of prejudice. I do not believe that on this evidence a conviction was reasonably open. The trier of fact, in this case the trial judge, ought to have entertained a reasonable doubt as to the guilt of the accused. In my opinion, an innocent man may have been convicted. 39 HEYDON JA: I agree. 40 JAMES J: I agree. 41 SPIGELMAN CJ: The order of the Court is: Appeal is allowed. Direct a verdict of acquittal. 42 SPIGELMAN CJ: On 9 July 1999 Twigg DCJ gave two separate judgments on sentence, one related to the offence of armed robbery with respect to which the Court proposes to allow the appeal against conviction. However on the same day his Honour sentenced the Applicant with respect to other charges relating to events that had occurred between 5 August 1995 and 7 August 1995. There were three charges involved, first that he did break and enter a dwelling house and steal certain items including a television set but also other items. To this the Applicant pleaded not guilty. 43 With respect to the second alternative charge there was a charge that the Applicant did dispose of a television set that had been stolen. To this charge he pleaded guilty. The third charge was a charge of obtaining a sum of money by false pretences as to the title to a National Bank cheque with an intent to defraud. To this charge he also pleaded guilty. 44 The prosecution accepted the plea to the two charges in full discharge of the indictment. I should indicate that this was a separate indictment from that involving the armed robbery. 45 His Honour gave careful and detailed reasons for each of the sentences to which he had come. He gave separate sentences for the three different offences. However, his Honour did take into account the fact that the Applicant was being sentenced for offences at the same time and that there would be some necessity to consider the totality of the sentence with respect to the charges. It is not necessary to outline the circumstances of the two charges with respect to which the Applicant pleaded guilty. They are fully set out in his Honour's reasons on sentence. 46 His Honour also made reference to the prior convictions for similar offences by the Applicant, which were matters appropriate to be taken into account with respect to the sentencing on the separate charges. In the course of his reasons for the two charges to which the Applicant pleaded guilty his Honour said, after making reference to the offence involving the armed robbery at the liquor store: "It is appropriate that I take all matters into account when considering the totality of sentence. I propose to accede to the submission of defence counsel and not opposed by prosecution that any sentences on these two matters should run concurrently with any sentence I impose in respect of the armed robbery". 47 At the end of his reasons for sentence his Honour sentenced the Applicant to two fixed terms for those two charges. With respect to the count of disposing of stolen property, he was sentenced to a fixed term of two years penal servitude to commence on 9 July 1999. With respect to the charge of false pretences, he was sentenced to a fixed term of twelve months to commence on 9 July 1999. His Honour was at that stage aware that he proposed to sentence the Applicant on the second indictment to a minimum term of three years and six months and an additional term of two years and six months, the minimum term also commencing on 9 July 1999. 48 One of the submissions made in the course of the submissions by Mr Craddock, appearing for the Applicant was that there was no express reference in his Honour's sentence to a period of some twenty days pre-sentence custody that had been served. However, his Honour referred to that fact and there is no reason to believe that his Honour failed to take it into account in fixing the terms that he did, and the date on which they were to commence. 49 At the end of his reasons for sentence with respect to the two charges presently under consideration his Honour identified the quantum of the fixed terms he proposed to impose and said in each case that the reason for the fixed term was because of the penalty he was imposing in respect of the armed robbery. 50 By this reference I understand his Honour to be saying that but for the fact that a longer minimum term was to be imposed with respect to the armed robbery, his Honour had not contemplated the imposition of a different sentence with respect to these two charges, encompassing a minimum term and an additional term. Nevertheless, with respect to each of these charges it appears clearly from his Honour's reasons that his Honour gave very careful consideration to the separate nature of the offences and also to the prisoner's significant relevant record with respect to offences of a cognate character. In my opinion the fixed term of two years for one offence and one year for the other offence should be understood as what his Honour would otherwise have imposed as a minimum term, if his Honour had been sentencing on the basis of identifying both a minimum term and an additional term. 51 If this Court were to intervene in any way for any reason in the sentence of his Honour with respect to those two charges, then in the exercise of the discretion of the Court I would not fix a non-parole period of any lesser term than the two years for the second of the charges in the first indictment and one year for the third of the charges in the first indictment. 52 For these reasons in my opinion leave to appeal with respect to sentence on the convictions pursuant to that indictment should be granted but the appeal should be dismissed. 53 HEYDON JA: I agree. 54 JAMES J: I also agree. 55 SPIGELMAN CJ: The orders of the court are that the appeal against conviction with respect to the armed robbery is allowed and a verdict of acquittal is entered. With respect to the appeal against sentence leave to appeal is granted but the appeal is 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.