New South Wales Court of Criminal Appeal CITATION : R v McDonald [2001] NSWCCA 363 FILE NUMBER(S) : CCA 60531/00; 60538/00 HEARING DATE(S) : 23 August 2001 JUDGMENT DATE : 14 September 2001 PARTIES : Regina Raymond Anthony McDonald JUDGMENT OF : Beazley JA at 1; Wood CJ at CL at 2; Sperling J at 3 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/31/0046 99/51/0123 LOWER COURT JUDICIAL Bell DCJ OFFICER : COUNSEL : W G Dawe QC for the Crown P R Boulten for the Appellant SOLICITORS : S E O'Connor for the Director of Public Prosecutions D J Humphreys for the Appellant CATCHWORDS : Criminal Law - error of reasoning in admitting identification evidence over objection based on s137 of Evidence Act 1995 - no question of principle LEGISLATION CITED : Criminal Procedure Act 1986, s157 Evidence Act 1995, s115, s137 DECISION : (1) Appeal allowed; (2) Conviction quashed; (3) Order a new trial. - 2 -IN THE COURT OF CRIMINAL APPEAL 14 September 2001 BEAZLEY JA WOOD CJ at CL SPERLING J 60531/00 R v Raymond Anthony McDonald 60538/00 Judgment 1 BEAZLEY JA: I agree with Sperling J. 2 WOOD CJ at CL: I have had the advantage of reading in draft the reasons for judgment of Sperling J. I agree with his reasons and the orders he proposes. 3 SPERLING J: On 1 August 2000, the appellant was found guilty on two counts of aggravated sexual intercourse without consent, following a trial in the District Court before Bell DCJ and a jury. The offences were alleged to have been committed on 9 October 1997 in the flat, at Taree, of the complainant, Ms Christine Gregan. The aggravating factor was a threat with a knife. 4 The appellant has appealed against conviction only. The grounds of appeal are as follows. (1) His Honour erred in permitting the complainant to identify the appellant as the perpetrator in Court. (2) His Honour erred by admitting evidence of a picture identification of the appellant by Rebecca Jane Goodridge. (3) His Honour erred by inadequately warning the jury of the dangers of the complainant's identification of the appellant in the courtroom. (4) His Honour erred by inadequately warning the jury of the dangers of the picture identification of the appellant by Rebecca Jane Goodridge. (5) His Honour's directions erred by inadequately warning the jury concerning the dangers flowing from the complainant's delay in reporting the incident to the police. (6) His Honour erred by allowing evidence to be led from Ms Neal contrary to s157 of the Criminal Procedure Act . 5 The complainant gave evidence of the sexual assaults. She was not challenged on the substance of the evidence. There was also evidence of prompt complaint to friends and to sexual assault counsellor, Ms Ruth Neal. It was Ms Neal's evidence that pinpointed the date of the offences. 6 The only serious issue at the trial was the identity of the offender. Identification evidence was given by the complainant, her flatmate, Ms Rebecca Goodridge and a friend of the complainant, Ms Jacqueline Townsend. 7 The appellant gave evidence at the trial. He denied ever having been to the flat and ever having met the complainant. He said that he was not in Taree in October 1997, that he was in Byron Bay for a period in 1997 which included October of that year. The appellant's defence was that this was a case of mistaken identity. It was, of course, for the Crown to establish, beyond reasonable doubt, that the appellant was the offender. 8 Notwithstanding prompt complaint to the persons I have mentioned, the complainant did not report the matter to the police until 23 June 1998. There was, therefore, no opportunity for the police to obtain identification evidence for some time after the offences were committed. The police appear then, however, to have rested content with the complainant's account of having known the appellant beforehand, with a view to leading that evidence from her in court. It was not until the trial had begun that the Crown took steps to obtain other identification evidence. 9 The indictment was presented and the jury were empanelled on 26 July 2000. That day was occupied by preliminary matters dealt with in the absence of the jury. In the course of the day, the Crown prosecutor asked counsel for the appellant whether the appellant would consent to taking part in an identification parade. The appellant's counsel was told that, if the appellant did not consent, the Crown would seek to adduce picture identification evidence pursuant to s115 of the Evidence Act. Counsel for the appellant asked if he could obtain instructions. The trial judge allowed the appellant to leave the court room with his counsel. On returning to the court room, the appellant's counsel informed the trial judge that his client declined to participate in an identification parade. 10 Asked if there was any objection to allowing the Crown an opportunity to conduct a picture identification procedure that afternoon or whether the appellant disputed that that should be allowed to happen at all, the appellant's counsel replied that if the picture identification process proceeded and if the appellant were to be nominated, he (the appellant's counsel) would "mount a discretionary submission that your honour should reject it because it's three years after the event". Counsel added that whilst he opposed the application he could see the Crown's position. The trial judge correctly observed that he had no discretion to prevent a picture identification process from being carried out. It was only a matter of whether that was allowed in court time or whether it would be done out of court hours. 11 The complainant was called to give evidence on the following day. She said she was introduced to a person called "Raymond" by a mutual friend. She described him as aboriginal, of medium build and height, with hair about a centimetre long, and about 25 years of age. She said that, on that occasion, the person returned to her flat with others and stayed there for about four hours. She said that, about a week before the offences occurred and about three weeks after that meeting, the person visited her flat with others and stayed for, about four to five hours. On that occasion people addressed him as "Raymond". About a week after that, this now being in October 1997, there was a small party at the complainant's flat. The complainant said that Ms Goodridge and Ms Townsend were present and that the person, Raymond, came to the flat during the course of the evening. The complainant gave evidence of conversations with him on that occasion, the content of which is not presently material. At that stage, she said, there were only four people in the flat. These did not include either Ms Goodridge or Ms Townsend at that stage. Those who remained left the flat in circumstances which, again, it is unnecessary to recount here. It was then that, according to the complainant, the person, Raymond, committed the offences. The complainant gave evidence of complaint to Ms Goodridge, Ms Townsend and Ms Neal. She identified the appellant in court as the person, Raymond, her assailant. 12 Ms Goodridge gave evidence that she had met a person, introduced to her as "Raymond McDonald", once before and again at the party. She gave evidence of the conversation with the complainant the following morning. She said that, two days before being called, she had selected a photograph from a series of photographs shown to her by the police. This was in response to being asked if she could identify "Raymond McDonald" among the photographs. Ms Goodridge was not asked in court what, if anything, she had said when she selected the photograph. However, when asked in court if she had marked the selected photograph, she volunteered that evidence. She said "Yes, I signed the back of it and said that I thought it was number 10. I was pretty sure it was number 10". 13 Detective Hartcher gave evidence. He said that the photograph selected by Ms Goodridge was a photograph of the appellant, taken after he was arrested on 5 November 1998. There was no dispute about that. Detective Hartcher gave no evidence of what Ms Goodridge had said when she selected the appellant's photograph. 14 Ms Townsend gave evidence that she had met a person called "Raymond" once before the night of the party and again at the party. Ms Townsend was then absent from the flat for a time. When she returned, she said, the same person was there. On the complainant's evidence, the offences had occurred in the interim. Ms Townsend gave a description of the person referred to in her evidence. It was reasonably consistent with the appellant's appearance, but that is all. 15 In cross examination, Detective Hartcher agreed that the appellant had a tattoo of a dog or a wolf on his chest and of a dragon, the words "mum" tattooed on his left shoulder, the word "dad" on his right shoulder and a cross on his right wrist. He also had a two centimetre scar at the bottom of his neck, a four centimetre scar on the left side of his neck and a five inch scar on the right side of his neck. At the request of the appellant's counsel and with the judge's permission, Detective Hartcher identified these tattoos and scars on the appellant's body. 16 None of the tattoos or scars were mentioned to the police by the complainant. She admitted in her evidence that she had not seen them on the occasion of the offences or on the two previous occasions when she said she had met the appellant. She said the appellant had taken off his clothes at the time of the offences, but she said the room where the offences occurred was dark. 17 A brother of the appellant gave evidence in the appellant's case. He said the scars and tattoos were all present in 1997. 18 It is convenient to deal with Ground 2 in the first instance. Ground 2: His Honour erred by admitting evidence of a picture identification of the appellant by Rebecca Jane Goodridge. 19 Objection was taken to this evidence being admitted at the trial on the ground that the trial judge would be satisfied that its probative value was outweighed by the danger of unfair prejudice to the accused: Evidence Act 1995, s137. 20 His Honour rejected the submission. In a short judgment, he said: Under s137, the Court is bound to refuse to admit evidence in the Crown case if its probative value is outweighed by the danger of unfair prejudice to the accused. Three matters are to be considered. Firstly, probative value. There is no doubt that the photograph of the accused forming as it would part of identification evidence has probative value. Then there is the question of unfair prejudice to the accused. It is not prejudice simpliciter, it is prejudice that has to be unfair. In relation to that phrase, Mr Segal has submitted that the lateness of the photograph and its examination by the potential witness gives greater room for error, and that photographic identification as with line-up identification, should take place as soon as is reasonably possible after the commission of the offence or the arrest of the accused. Against this is the third matter. The Crown Prosecutor has submitted that a correct identification of a photograph with the person of the accused after a period of time, demonstrates the strength of the memory rather than weakness of the memory. These are two general statements. Neither of then are supported by authority, so one must apply commonsense in a reasoned fashion to the assessment of the two conflicting positions. In my discussions with Mr Segal, I think it would be apparent that I hold the view that correct identification of the accused in circumstances where he has not otherwise been observed, some two and a half years after the event, would demonstrate strength of memory. In those circumstances, I am unable to appreciate that there would be any unfairness in the prejudice to the defendant. I therefore hold that the probative value of the photographic identification of the accused by Miss Goodridge is not outweighed by the danger of unfair prejudice to the accused, and such evidence may be adduced by the Crown, subject to any other ruling. [Emphasis added] 21 There was a logical flaw in using the identification evidence itself as evidence of a good memory, and hence as evidence of the reliability of the witness' identification evidence. The matter in question - the reliability of the identification evidence - was assumed as a basis for finding that the identification evidence was likely to be reliable. 22 The reasoning was even the more flawed because the implicit starting assumption (the fact of identity) was of a higher order than the conclusion (that the evidence of identity was likely to be reliable). 23 This process of reasoning was then seen by his Honour as precluding any finding of unfair prejudice. The approach was this: If the evidence was likely to be reliable, how could its admission be unfair? The approach - founded as it was on an illogical line of reasoning - thus led his Honour to disqualify himself from taking into account the well known reasons why photo identification evidence may be unreliable. 24 His Honour also appears to have overlooked the terms in which the identification evidence was given in this case. True, it was the accused's photograph that the witness selected, but she said only that it looked like the person she had met and that she was pretty sure. That did not make the evidence inadmissible but it was of much less probative value than a confident, unqualified identification. 25 By finding the evidence had high probative value, through an error of reasoning and an overstatement of the evidence, and by not taking into account considerations which militated against the probative value of evidence of this kind, his Honour was precluded from evaluating whether there was a risk of unfair prejudice to the appellant on the basis that the jury might give the evidence more weight than it warranted. 26 His Honour was not bound to be unconvinced that the danger of unfair prejudice outweighed the probative value of the evidence. Accordingly, the failure to undertake the exercise required by s137 in a logical way and having regard to relevant considerations may have resulted in evidence being admitted which would otherwise have been excluded. 27 It is sufficient if the appellant lost a chance of acquittal. The evidence was important. It went some way to corroborate the complainant's evidence of identity, and identity was the only real issue in this case. The reliability of the complainant's identification evidence was disputed. Ms Goodridge's identification evidence might, therefore, have affected the outcome. But for error, her evidence might have been excluded. That is a miscarriage of justice. 28 This ground of appeal should accordingly be upheld. Other grounds of appeal 29 I have serious misgiving about other grounds of appeal, in particular in relation to Grounds 3 and 4. As to Ground 3 (in-court identification evidence by the complainant), there was no warning by the trial judge - as distinct from reference to the arguments of counsel - concerning the well known hazard of identifying an accused person in the dock as the offender. Those hazards were compounded, in this instance, by a photo identification made by the complainant the day before, and the consequent risk of "displacement effect". However, the jury knew nothing of the photo identification and the trial judge may have known only that photo identification by the complainant was to be attempted. That is a complication. 30 As to Ground 4 (photo identification evidence by Ms Goodridge), there was no warning by the trial judge concerning the well known hazards of photo identification as such. 31 However, because it is clear that the appeal should be allowed on Ground 2, it would be unfair to the appellant to take time to give further consideration to other grounds of appeal. Conclusion and Orders 32 The appeal should be allowed on Ground 2. No opinion is expressed, one way or the other, in relation to other grounds of appeal. 33 I propose the following orders: (1) Appeal allowed. (2) Conviction quashed. (3) Order a new trial. -o0o- 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.