Reported Decision : 127 A Crim R 250 New South Wales Court of Criminal Appeal CITATION : REGINA v BEATTIE [2001] NSWCCA 502 FILE NUMBER(S) : CCA 60372/00 HEARING DATE(S) : 3 December 2001 JUDGMENT DATE : 7 December 2001 PARTIES : REGINA v John BEATTIE JUDGMENT OF : Mason P at 1; Sully J at 26; Levine J at 27 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/31/0312 LOWER COURT JUDICIAL Luland DCJ OFFICER : COUNSEL : Appellant: C Waterstreet Crown: R Hulme SOLICITORS : Appellant: Patricia White & Assoc Crown: S E O'Connor CATCHWORDS : Attempted escape - appeal against conviction - circumstantial evidence - whether appellant was prisoner who attempted to escape - Crown relied on evidence of three prison officers identifying appellant from security video - Mundarra Doolan Smith v The Queen [2001] HCA 50 - police witnesses in no better position than jurors to make relevant comparison - video tape missing since trial - Court unable to inform itself as to critical issue - new trial ordered. (ND) CASES CITED: Mundarra Doolan Smith v The Queen [2001] HCA 50 R v Gardner [2001] NSWCCA 381 DECISION : Appeal allowed. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL CCA 60372/00 MASON P SULLY J LEVINE J Friday 7 December 2001 REGINA v John BEATTIE JUDGMENT 1 MASON P: The appellant was convicted after trial in the District Court before Judge Luland QC and a jury on the charge of attempted escape from Tamworth Correctional Centre on the morning of 22 March 1999. 2 At about 7am on that day prison officers discovered a rope over the eastern perimeter wall of the gaol. It was entangled in the razor wire and there was an electrical flex cord on the ground beneath the rope. On the far side of the wall on the outside of the gaol there was an old extension ladder tied to the other end of the rope. There was also a pair of heavy gloves on the ground as well as some oranges. 3 The Crown relied on circumstantial evidence that it was the appellant attempting to escape. The Crown also relied on the evidence of three prison officers who had known the appellant for a period of time and who recognised him as the person captured on the security video in the sterile zone of the gaol attempting to escape. The case went to the jury on the basis that they could convict on either or both bases of the Crown case. 4 The security video was not a moving picture. Rather it represented a series of photographs taken four seconds apart. The video showed a figure throwing something over the fence from the long yard at 5:40am According to the Crown, this was fruit and it was a signal to someone on the outside. The video also records a figure in the sterile zone in the area of the attempted escape between 6:13am and 6:19am. In each case the figure was dressed as a prisoner, not an officer. 5 It was the Crown case that the only two prisoners out of their cells at the relevant time were the appellant and a prisoner named McCreath. Officers gave evidence to the effect that all prisoners were locked into their cells the previous evening and that the appellant and McCreath were the only two who had been released during the relevant period. They had been released at about 5:30am to perform their duties as breakfast sweepers, ie the persons responsible for preparing breakfast for the prisoners and delivering it to their individual cells. 6 McCreath gave evidence for the Crown that he had not attempted escape. There was also evidence from prison officers to the effect that the man appearing in the video was definitely not McCreath. 7 The Crown also relied on evidence that the appellant had made telephone calls to his fiancée at 5.30 and 5:42am. The calls were very short but it was suggested that they were signals. 8 It was the Crown case that the flex cord found on the ground and beneath the rope came from an electric fan that belonged to the appellant. The suggestion was that the cord had been used in an attempt to dislodge the tangled rope attached to the ladder. The fan (minus the flex) was handed to officers by the appellant's cell-mate on the day after the attempted escape. 9 The issue at trial was whether the appellant was the prisoner who attempted to escape. 10 The particular grounds of appeal all relate in various ways to the evidence of three prison officers (officers Bennett, Norton and Solomons) which was broadly to the effect that they had identified the appellant in the surveillance video which they played back to themselves at the prison on the morning of the attempted escape and not long after the tell-tale signs of it had been discovered. They had used a video cassette recorder (VCR) capable of freezing a particular frame. 11 Very shortly after the jury were empanelled on the first day of the trial each officer was examined on the voir dire as to the circumstances of his identification of the appellant. There was some evidence to suggest that the tape's quality (which was not very good) differed from what the officers had viewed on the morning of the attempted escape. This may have been due to a different quality of VCR available at trial and at the prison. The addresses of counsel that day have not been recorded. 12 The following day a new VCR was obtained, being one which allowed the film to be wound through frame by frame in the way it had been when the three witnesses originally made their identification of the appellant. At that stage counsel for the appellant made the observation that this would serve to underline a difficulty to which he had been alluding the previous day, to the effect that the jury would be likely to think that the image that had been seen out of court by the officers must have been better than the one available to the jury. Counsel continued: To be blunt about it with images of this quality in my submission of these three witnesses are claiming to have been able to do the impossible, that is make a reliable or any sort of identification of Mr Beattie from this video film. If the jury takes that view, that is you couldn't identify anyone from this film. Either they aren't going to accept the identification or since they are going to see three witnesses adamant that they were able to carry out that act, no matter what the state of the evidence about the image that they sought is, they are going to speculate that the images that Bennett and the others saw on the day must have been much better. 13 This prompted the recall of the first officer who had made a clear identification, officer Bennett. He said that the quality of the tape seen the previous day in court was a lot better than what he had viewed at the prison gatehouse. 14 The submissions which followed have been recorded and they disclose that the objection to the officers' identification was being pressed on the basis of discretionary grounds relating to several factors. They included the poor quality of the video, the possibility that the officers were influenced by the belief that Beattie and McGrath were the only prisoners out of their cells at the relevant time, and the problems stemming from the difficulty of recapturing the exact quality of the images that had been viewed by the officers back at the prison. Judge Luland ruled the evidence to be admissible. He said: I heard evidence on the voir dire from the three witnesses who purport to identify the accused as being that person. The evidence arises from a series of still photographs taken from security cameras mounted to surveille the sterile area of the gaol. The still photos are taken at very frequent intervals and when played as a series on a video form what is seen as very similar to a moving video. It is quite clear that a male person was in the prohibited area at the time when a rope was thrown over the wall no doubt to enable that person's escape. The question at issue here is whether it was the accused. I heard from the three gaol employees who each had close association with the accused pursuant to their duties over a period of what was said to range from six weeks to a few months in respect of the various witnesses. Each of the three witnesses said they were very familiar with the accused because of such contact. They each at different times viewed the video fairly shortly after the alleged offence. Each said they had no trouble identifying the offender as being the accused and all are still quite positive about it. I had the opportunity to view the video during the voir dire. I formed the view that the quality of the video was rather poor. However the person so photographed at different times can be clearly seen as a figure, but given the constraints of distance, light, the angle of the shots and that the photographs are in black and white makes it difficult to determine any facial features. Nevertheless, I am satisfied from the evidence of each of the three witnesses that due to their familiarity with the accused they would be capable of making an identification from the video. In the end result the jury will see for themselves the clarity or otherwise of the video – of the photographs and the resemblance of the person depicted there. Directions will need to be given about the dangerousness involved in the process as required by Domican v Queen , 1992, 173 CLR at p555. As was stated in Regina v Smith , 1999, 47 NSWLR at 419 the evidence such as the present is not identification as defined in the Evidence Act but either evidence of a fact of recognition or opinion evidence. If it be the latter it is inadmissible. I am satisfied from the evidence of each of the witnesses that none was expressing an opinion. Their evidence in my view was that of the fact of recognition. I am therefore satisfied on the balance of probabilities that the evidence is admissible. 15 His Honour declined to exercise what he described as his discretion to exclude the evidence pursuant to s137 of the Evidence Act. (Such a description is erroneous: see R v GK [2001] NSWCCA 413 at [74] per Sully J.) 16 The officers gave evidence of identification. 17 The summing up contained a strong warning as to the inherent dangers with evidence of this nature, including dangers stemming from the quality of the video. The jury were told that the officers could not make much of the video playing it through at normal speed, but that they readily identified the appellant when holding the video in the freeze position. The officers' evidence went to the jury on the basis that the officers knew the appellant from earlier dealings with him and recognised him as the person shown in the video. 18 The original grounds of appeal included a challenge to the admission of the officers' evidence of identification. Amended grounds were propounded during argument and it is appropriate in the circumstances to grant leave to make such amendments. The new grounds spell out alternative bases for challenging the admission of the identification evidence, the directions relating to it, and the reasonableness of the verdict standing (as it does) upon two alternative bases one of which depends upon the officers' evidence of their out of court identification based upon examining the security video on the morning of the escape. In my view it is unnecessary to set out the amended grounds or to deal with all of them. There must be a new trial in light of the reasoning in the majority judgment in Mundarra Doolan Smith v The Queen [2001] HCA 50. 19 As indicated above, Luland DCJ placed reliance upon this Court's decision in R v Smith (1999) 47 NSWLR 419. However, the High Court allowed the appeal from this decision and it is to the reasons of the High Court, handed down on 16 August 2001, that this Court must now look for guidance. 20 What is clear from the reasons of the majority in the High Court is that there is a primary enquiry in matters such as the present: is the evidence of the witnesses who viewed the video relevant? If, and only if, that question is answered in the affirmative does one turn to further questions about the application of the opinion rule, the discretion to exclude evidence under s135 of the Evidence Act and the direction to exclude prejudicial evidence under s137 of the Evidence Act. 21 In the circumstances, the failure to object at trial on grounds of relevance ought not to preclude the point being addressed in an appeal otherwise challenging the admissibility of the critical evidence (see also R v Gardner [2001] NSWCCA 381). 22 The High Court decision treats as irrelevant and therefore inadmissible evidence of police witnesses identifying a suspect from pictures taken by a security camera, notwithstanding that such identification is based upon their prior acquaintance with the suspect if, at the time the police evidence is tendered, the police witnesses were in no better position than the jurors to make the relevant comparison. It is to me not entirely clear what factors may or may not place the police witnesses in position of either equivalence or advantage (cf Smith at [9], [11], [15]). However, it is unnecessary to explore this in any detail because of two aspects of the present case: 1. The relevant tape has gone missing, with the consequence that this Court is unable properly to inform itself as to the critical issue, namely whether the police witnesses were in any position of advantage. It was admitted into evidence at trial, returned to Corrective Services after the appeal was lodged and cannot now be located. The Court does not have the advantage of the trial judge's assistance in this particular matter because he, quite properly, looked to our earlier decision in Smith for guidance. He could hardly be expected to have anticipated the issues raised in the High Court. 2. The Crown accepts that the evidence of two of the officers (Norton and Solomons) is indistinguishable from the evidence held to be irrelevant by the High Court. 23 These matters alone suffice to require this Court to overturn the conviction. Because the video tape has gone missing, it is unnecessary for us to venture into the deep legal waters of deciding whether, as Kirby J thought, there are additional problems stemming from the application of the opinion rule (Evidence Act, s76). Nor need we venture into the deep factual waters touching ss135 and 137 stemming from the indistinctness of the tape, the possible tainting of the officers' evidence by reason of their collaboration and the possibility that they reasoned from prior knowledge that the relevant field of potential escapees was the small field of two prisoners, ie the appellant and McCreath. 24 The Crown's faint reliance upon the proviso cannot stand in light of the importance of the identification evidence in the way the trial was conducted. 25 I propose the following orders: 1. Appeal allowed. 2. Conviction and sentence set aside. 3. New trial ordered. 26 SULLY J: I agree with Mason P. 27 LEVINE J: I agree with Mason P. ***************** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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