R v BLICK [2000] NSWCCA 61

Reported Decision : [2000] A Crim R 326

New South Wales Court of Criminal Appeal

CITATION : R v BLICK [2000] NSWCCA 61 revised - 14/03/2000 FILE NUMBER(S) : CCA 60417/99 HEARING DATE(S) : 7 March 2000 JUDGMENT DATE : 14 March 2000

PARTIES : Appellant - Jesse David BLICK Crown - Respondent JUDGMENT OF : Sheller JA at 1; James J at 31; Dowd J at 32

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0745 LOWER COURT JUDICIAL Howie DCJ OFFICER :

COUNSEL : Appellant - R J Webb Crown - C K Maxwell QC SOLICITORS : Appellant - D McIlwraith Crown - S E O'Connor CATCHWORDS : CRIMINAL LAW AND PROCEDURE - ADMISSION OF EVIDENCE - IDENTIFICATION OF OFFENDER FROM PHOTOGRAPHS - EVIDENCE ACT 1995, s137 LEGISLATION CITED : Evidence Act 1995 Moran v McMahon (1985) 3 NSWLR 700 Carusi v R (1997) 92 A CrimR 52 Alexander v The Queen (1981) 145 CLR 395 R v Christie [1914] AC 545 CASES CITED: R v Edelsten (1990) 21 NSWLR 542 Domican v The Queen (1992) 173 CLR 555 Lee Transport Co Ltd v Watson (194) 64 CLR 1 Miller v Jennings (1954) 92 CLR 190 R v Truong (1996) 86 A CrimR 188 DECISION : 1. Appeal allowed; 2. Quash the conviction of the appellant; 3. Direct that a judgment and verdict of acquittal be entered.

IN THE COURT OF

CRIMINAL APPEAL 60417/99

SHELLER JA JAMES J DOWD J

REGINA v Jesse David BLICK Following a robbery during which some cash and a bum bag were stolen, the victim gave the police a description of the offender as a man with a goatee beard. One week later, the victim was shown a bum bag which he identified as the stolen bag. He was also shown photographs of 12 men, including one of the appellant. The photograph of the appellant was the only photograph of a man with a goatee beard. The victim selected the appellant's photograph as that of the offender. One week later, the victim made a statement in which he referred to his photographic identification and gave a further description of the offender. At trial, the appellant pleaded not guilty. The basis of the Crown case rested on the identification evidence. Howie DCJ refused the appellant's application to have the photographic identification evidence excluded under s 137 of the Evidence Act. Following a detailed summing up by the trial judge, the jury returned a guilty verdict and the appellant was convicted of armed robbery. The appellant appealed against the admission of the identification evidence and argued that its admission resulted in a miscarriage of justice. Held: (by Sheller JA, James and Dowd JJ agreeing) 1. When an application is made by a defendant to exclude evidence pursuant to s137 of the Evidence Act, the judge must balance the probative value of the evidence against the danger of unfair prejudice the defendant. 2. While the product of that process is a judgment analogous to the exercise of a judicial discretion, there is a risk of error if a judge proceeded upon the basis that she or he is being asked to exercise a discretion about whether otherwise admissible evidence should be rejected because of unfair prejudice to the defendant. The correct approach is to perform the weighing exercise mandated by the legislation. 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. Moran v McMahon (1985) 3 NSWLR 700, referred to. 3. Evidence of identification from photographs is relevant and prima facie admissible. The use of such evidence, however, presents very real dangers at trial. Carusi v R (1997) 92 A Crim R 52, discussed. Alexander v The Queen (1981) 145 CLR 395, discussed. 4. The probative value of the evidence in this case was not great considering:- i) the likelihood that the victim had been alerted to the possibility that the offender had been apprehended by being shown the bum bag before being asked to examine the photographs; ii) that a significant feature of the victim's recollection of the offender was his goatee beard; iii) that only one photograph showed a man with a goatee beard; and iv) that the photograph of the man with the goatee beard was of a different shape and size to the other photographs, giving the impression that it had been cut down for the purposes of the identification examination.