District Court New South Wales Medium Neutral Citation: R v Sterling; R v McCook [2014] NSWDC 199 Hearing dates: 22 October 2014, 23 October 2014 Decision date: 27 October 2014 Before: Yehia SC DCJ Decision: Evidence of correctives officers of inmates in prison CCTV is not 'ad hoc' expert evidence and is therefore inadmissible. Catchwords: Admissibility of evidence, identification, evidence of recognition, "ad hoc" experts Legislation Cited: Evidence Act 1995 (NSW) ss 55, 79, 137 Cases Cited: Butera (1987) 164 CLR 180 Daubert v Merrell Dow Pharmaceuticals Inc 509 US 579 (1993) Honeysett v The Queen [2014] HCA 29 Munderra Smith (1999) 47 NSWLR 419 R v Burton [2013] NSWCCA 335 R v Cassar and Sleiman (unreported NSWSC 436) R v Drolett [2005] NSWCCA 356 R v Eastman (1997) 158 ALR 107 R v Leung Wong [1999] NSWCCA 287 R v Marsh [2005] NSWCCA 331 R v Nguon & Ream NSWDC (31 March 2014) R v XY [2010] NSWCCA 121 Smith v R [2001] HCA 50 Tang v R (2006) A Crim R 377 Category: Interlocutory applications Parties: Regina (Crown) Shane Sterling (Accused) Ashley McCook (Accused) Representation: Counsel: Mr Christofi (Crown) Mr Brassil (Accused - Sterling) Ms Cook (Accused - McCook) Solicitors: Mr Giles-Sproule (Crown) Mr Irani (Accused - Sterling) Mr Mazurkewicz (Accused - McCook) File Number(s): 2013/216028, 2013/202886 Judgment 1The accused Shane Robert Sterling and Ashley James McCook are charged with two counts on an indictment dated 22 October 2014, one being in the alternative. Those are that they: (1)On 21 June 2013 at Parklea in the State of New South Wales wounded Sam Raad with intent to cause grievous bodily harm. And in the alternative that they: (2)On 21 June 2013 at Parklea in the State of New South Wales recklessly wounded Sam Raad while in company with each other. 2On 22 October 2014 the accused were arraigned before me and pleaded not guilty to both counts. 3It is the Crown's case that the accused were inmates in area 1C at Parklea Corrections Centre. The accused Mr Sterling was housed in area 1 from 14 February 2013 while Mr McCook was housed there from 31 May 2013. 4Most of the incident, but not all is captured on CCTV. The security vision runs for only about 20 seconds but is alleged to depict Mr Sterling and Mr McCook attacking Mr Raad. The Crown submits that the footage is reasonably clear but not clear enough that the jury could make their own comparison in the sense that a Court would consider they could do so without assistance: R v Smith [2001] HCA 50. The Crown relies upon opinion evidence from four corrections officers who had contact with the accused as inmates at Parklea and who were familiar with them. They did not see the assault but they have seen the footage and claim to be able to identify the accused. 5The Crown called evidence from the four corrections officers on the Voir Dire before essentially conceding it could only rely on the those officers, Nicholas Espie and Nathalie Church. 6The evidence on the voir dire is summarised below: 7Nicholas Espie * Employed as a corrections officer at Parklea for four years apart for a break of about four months in 2012. * Explained Parklea is broken up into 5 areas which are then further divided into four pods per area. Parklea housed 823 inmates in 2013. * His initial role was as a dog handler and he worked "all the areas" in the prison. * He then moved to area 1 in January 2013 and after two months began working as an 'acting supervisor" of area 1. This was his role on 21 June 2013. * Was involved in "day to day running of the areas" ■ Musters ■ Head counts ■ Lock ins ■ Meals ■ Administration ■ Organising inmates for legal appointments, medical appointments * Muster occurs three times a day, in the morning, at lunchtime and in the afternoon or "lock-in". * It involves officers looking at the face of a prisoner and checking them off against photographs in a 'muster book'. * In his role as a supervisor two or three times a week, he would oversee the muster. This did not involve checking the prisoners off against photographs. * If he was not working as a supervisor, he carried the muster book and checked the prisoners against the book. * He said that doing the muster "you do get to know your inmates. You may not liaise with them too often but you do know their faces and their names. * Mr Espie could not say which days he worked or how many contacts he had with Mr McCook, or how many musters he conducted in area between 31 May 2013 and 21 June 2013. * He estimated that a full muster of two 'areas', areas 1A and 1C would take 10-15 minutes. He said that at full capacity there would be 34 inmates in area 1C and between 43-48 in area 1A. Although he agreed with an estimate that about 15 seconds was spent on each inmate during the muster, that estimate was based on 40 inmates not 77 or 82, being the combined potential number involved in a combined muster of areas 1A and 1C. The calculation is closer to eight or nine seconds. He said that 15 seconds was "enough time to look at the face and look at the photo and make sure it is that inmate". * In cross-examination the witness said that two officers do the muster for 1A and 1C and two other officers do the muster for 1B and 1D. On any given day he said that he might be 'on the book' for different wings, so at any one muster there was only a 50/50 chance of conducting the muster that involved 1C. * He would speak to the inmates if they were required for medical appointments or legal visits. However he was unable to give any evidence of an occasion when he interacted with either accused with respect to a medical appointment or legal visit. * Mr Espie gave evidence about how meals were distributed to the inmates. * The milk is distributed to the inmates during the morning muster. Lunch and dinner is collected by the 'sweepers' and taken back to the prison wings where it is distributed. The witness would be involved in getting the sweepers from the wings to collect the meals and letting them back in once they had collected the food. * His duties also involved monitoring the inmates via CCTV and reviewing CCTV if an incident occurred. Once again, this evidence was given in general terms. The witness did not give evidence of any prior occasion where he monitored or reviewed CCTV footage of either accused. * He began working in area 1 in roughly January 2013. * Prior to January 2013 he had contact with Mr Sterling in his conducting cell searches as a dog handler but could not estimate how many times that contact would have occurred. * He could not recall if he had contact with Mr McCook prior to January 2013. He estimated that Mr McCook became an inmate in area 1 two or three months prior to 21 June 2013. He is mistaken in that evidence. It is agreed between the parties that Mr McCook did not become an inmate until 31 May 2013, three weeks prior to this incident. * He gave evidence that he worked 18 days per month over the relevant period although there was no specific evidence as to when he worked in any given month. He said he became "pretty familiar" with Mr McCook who he said "always wore his black beanie around... one of the only ones in the yard, so that's how we generally identified him on cameras". * He admitted that inmates can purchase a beanie as part of an amenity buy-up and that in winter it is a popular buy-up item. * If he had passed Mr McCook prior to 21 June 2013 he said he would have recognised him. But he would not have said 'hello' to the inmate in passing. * He could not point to any occasion where he in fact spoke to McCook, escorted him to the clinic or visits or had any other specific contact with him. * Mr Espie could not recall if Mr Sterling was in area 1 when he started but believed he had been there for three or four months prior to 21 June 2013. * He said he had the same type of exposure to Mr Sterling as he had to Mr McCook. He had visual contact with him daily. * He said he knew Mr Sterling's name and face but could not recall any instance where he would have spoken to him. * He would not be able to recall the names of the 150 prisoners (the total number of prisoners housed in area 1) "off the top of his head" but said it would be a lot easier if he had pictures. * He admitted that Parklea has a very high turnover of inmates. * Mr Espie was the acting supervisor between March and June 2013. * He stated that in that position he had less face-to-face contact with inmates. * He explained that in the position of acting supervisor, there was a day shift, (from the morning until 4pm) an evening shift (from the afternoon until midnight) and a night shift (from midnight until the morning). * The prisoners are locked in at 3.30pm and not released from their cells until about 8.30 or 9am so on the night shift there was little face-to-face contact with the inmates unless there was a new arrival, or someone leaving. * There are no cameras in the cells so the inmates are not monitored between these times. * On this rotating roster, Mr Espie would work all three shifts but said 80% of his shifts were completed during the day. There is no evidence before me by way of employment records as to the shifts he worked in the relevant period. * He said that during the morning muster, as long as the officer had seen the inmate, and was assured of their welfare that "was fine". He agreed that seeing an inmate didn't necessarily mean face-to-face contact on every occasion. * He said that the lunchtime muster was carried out in the yard with the muster book. The prisoners would be placed in a line and there was a face-to-face photo check. There would be a distance of between a couple of metres to 15 metres between the officer carrying out the muster and the inmates. * Mr Espie viewed the CCTV in question on the 21 June 2014 in a common room where officers congregate. * He watched the footage in the presence of other corrective service officers. He could not remember who was there but said he thought Nathalie Church was there as well as Chris Richie. He said Leah McMichael may have been there along with Mark Kriesel and Amanda Evans. * He said the officers were talking about what had happened and trying to get to the bottom of which inmates were involved. * He said different people were making suggestions at different times. He said: "Everyone made their own conclusion, drew their own conclusion to it and there was an 'agreeance' obviously at that point. There was no general consensus, it was an 'agreeance' that that's who we'd identified", "We discussed what we'd seen on there and we decided that that's - there was no discrepancies in who the officers had deemed to be involved in the incident and that's how we identified the people in that." * Mr Espie agreed with the proposition that: "you're suggesting to one another who you thought was and who they thought was". 8Nathalie Church * Ms Church has worked as a Correctional Officer at Parklea since July 2011 and is now an acting supervisor. * She was stationed in area 1 on 21 June 2013. * Like Mr Espie, she was involved in the muster, three times a day and said she was familiar with the accused Mr McCook as a result of this role. * She could not remember when Mr McCook was moved into area 1 but estimated it was "months" prior to 21 June 2013. Her evidence in this regard is mistaken. During cross examination she accepted that Mr McCook was moved into the area on 31 May 2013. * She said she was rostered on the day shift between that date and 21 June 2013. Once again, no employment records have been tendered on the voir dire as to days or shifts worked in the relevant period. The witness could not say what days she worked during the three-week period that Mr McCook was housed in area 1. She worked 19 days per month. * Other than during muster, Ms Church said she had contact with inmates if they wanted an account balance, or when he wanted "clothing or anything". She did not give any evidence of remembering an occasion where she had such interaction with the accused. * She said she was familiar with the appearance of the accused as she had to make sure the wrong inmate wasn't in the wrong cell. * She could not recall an occasion when she spoke with Mr McCook prior to 21 June 2013. * Ms Church said that she knew Shane Sterling two to three months prior to 21 June 2013 and had the same exposure to him as she did with Mr McCook, that is during the muster. * Ms Church's evidence in relation how the morning muster was carried out differed from Mr Espie's. She stated that she checked the face of each prisoner while they were in their cells. * She denied there were occasions where during a muster an officer would not insist on face-to-face contact. * She estimated that the muster of one area would take 10-15 minutes. * Ms Church was asked to look at some CCTV footage on 21 June 2013 following an incident involving the inmate Sam Raad. * She said she viewed the footage and identified some people involved. * In court, Ms Church identified: ■ Mattie White in the back left-hand corner ■ Sam Raad wearing a green baseball hat ■ McCook wearing a black beanie ■ Sterling coming in behind McCook * She said that prior to viewing the footage she was told that an inmate had been stabbed and that had happened in the "1 Charlie wing". She said she was not told the names of the persons suspected of carrying out the attack. * She said she arrived at her identification of the prisoners from her own observations. * The first time she watched the vision she was alone but the second and third time other people were present. She said they talked about what they saw but she said: "I knew who it was by the first time I watched it. I was replaying it the second time for the supervisor so he could see what happened." 9Amanda Evans * As of June 2013 the witness's duties included those of wing officer and AVL officer. * She had been stationed in area 1 for about one year prior to the date of the incident. During that period 90% of her time was as AVL officer and 10% as wing officer. * As AVL officer she was responsible for "running the courts", which involved organising inmates to attend court appearances by way of audio and visual link. When she performed those duties she did not come into contact with inmates other than those who had court appearances. * The remaining 10% of the time when she performed duties as wing officer she was involved in conducting musters. * She was unable to give precise evidence as to her shifts in the relevant period. She gave evidence that she was "in AVL Monday to Friday". It appears that she only worked as wing officer on weekends. * She could not recall any specific contact with either accused. * She gave evidence that she had a recollection of seeing Mr McCook on the morning of the incident at muster because he was told to take his beanie off. * In cross-examination she said that she had viewed the CCTV footage five-six times. * She said that after the incident she was approached by Mr Raad, the complainant, and saw that he had an injury to the side of his jaw and to his ear. She took him to the clinic. * She agreed that at the clinic whilst with Mr Raad, she spoke to Mr Espie who was also present. It should be noted that this took place prior to any Ms Evans or Mr Espie viewing the CCTV footage. * In cross-examination she said that when she first saw Mr Raad and that he told her that it was Sterling and McCook who were responsible for the assault. * She agreed that she passed on what Mr Raad had told her to Mr Espie. * The witness agreed that the first muster of the day is simply a welfare check where a headcount is conducted. She agreed that this did not necessarily involve "a face to face recognition". * Her evidence was to the effect that the lunchtime and afternoon muster were different in that they did require checking the face of an inmate against a photograph. However she conceded that some supervisors are slightly more lenient or flexible than others with respect to stringent enforcement of the requirement. * She gave evidence that the handing out of meals at lunchtime and in the evening does not involve the officers. It is the sweepers who are responsible for handing out meals. 10Mark Kriesel * In June 2013 the witness held the position of intelligence supervisor at Parklea. * On 21 June 2013 he became aware of the incident involving Mr Raad which caused him to review footage of the incident on the following day. * He did not know Mr McCook and would not have recognised him prior to 21 June 2013. * Prior to 21 June he said that he had seen Mr Sterling walking around the centre but could not recall any specific dealings with him, nor how many occasions he might have interacted with him. * However he also gave evidence that prior to 21 June 2013 he probably would not have recognised Mr Stirling if he'd seen him walking about the gaol. * He came to identify the accused by conducting the process of comparison between their photographs retrieved from Corrective Service printouts with the CCTV footage. There was no further evidence adduced from the Crown as to the process that was undertaken nor details of study training or experience the witness may have had to conduct such a comparison. * The Crown did not press this evidence. 11The Crown limited his submissions to the evidence of Mr Espie and Ms Church. In the way in which written and oral submissions have been conducted before me, the Crown does not press the evidence of Ms Evans and Mr Kriesel. SUBMISSIONS Crown submissions Relevance: 12The Crown submits that the evidence of the Corrections Officers is relevant pursuant to s 55 of the Evidence Act 1995: Section 55 Relevant evidence 1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. 2) In particular, evidence is not taken to be irrelevant only because it relates only to: (a) the credibility of a witness, or (b) the admissibility of other evidence, or (c) a failure to adduce evidence. 13The Crown argued that the two witnesses, Mr Espie and Ms Church, are in a better position than the jury to identify the inmates captured in the CCTV, both by reason of the officers' employment and because the vision is not particularly clear. The Crown submitted that it is reasonably clear but not so clear that the jury could make the comparison between the accused they see in the dock and the inmates on the security footage, unassisted. 14The Crown argued that the facts in the case before me, can be comfortably distinguished from the situation that arose in Smith for two reasons: (1)The Corrections officers have had more exposure to the accused than the police officers in Smith, and therefore have a higher degree of familiarity. (2)The quality of the images in Smith were quite clear so the jury was in a reasonably good position to make the comparison themselves. The CCTV in this case is less clear. 15The Crown submits that Mr Espie and Ms Church were exposed to the accused on a regular basis and the nature of that exposure was that they were required to identify them three times a day as part of the muster. The term of potential exposure to each of the accused was about four months in relation to Mr Sterling and about three weeks for Mr McCook. That applies to both Mr Espie and Ms Church. The nature of the officers' duties was not simply that they were exposed to the two accused from time-to-time but they were required to focus their mind on identifying each of the two accused. It was argued that while the jury would only have an opportunity to see the accused sitting in the dock, where only their heads and shoulders are exposed, the officers have seen them moving around. 16This submission has less force in a case such as this where there was no evidence adduced from the witnesses about what features they identified or were able to discern from the footage to allow them to make their identification. Whilst I accept that the officers would have observed the accused moving around and walking in the prison, they did not give evidence that it was anything about the height, build, posture or gait of the people on the CCTV footage that they recognised as consistent with the accused. I have no evidence before me as to how it is that the witnesses are in a position of advantage in having seen the accused walking or moving around. 17The Crown submits that the officers have a particular kind of advantage in relation to making an identification in this case. The Crown contends that if I am satisfied that the officers hold a sufficient degree of familiarity such that at the end of the day they are in a better position than the jury to identify the accused on the CCTV, then I can find relevance. The Crown contends that the question of relevance is not a particularly demanding test. Opinion evidence 18The Crown submits that the evidence of Mr Espie and Ms Church would be admissible as opinion evidence under s 79 of the Evidence Act 1995. Section 79 Exception: opinions based on specialised knowledge If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge. 19The Crown submits that if I was satisfied that the evidence is relevant, the next question is whether or not the evidence of identification in this case is fact or opinion. The Crown accepted that here the evidence is "more likely to fall into the category of opinion evidence". 20The Crown further submits that the specialised knowledge in this case is the officers' familiarity with the appearance of the two accused, and therefore their superior capacity to identify the accused from the CCTV footage. The Crown argues this amounts to "ad hoc expertise". 21The Crown took me to paragraph [63] of Simpson J's judgment in Drollett which states: I would, tentatively, take the view that the concept of "ad hoc expert" is capable of including a person who has particular familiarity with another in such a way as to enable that person to give evidence identifying the other person by reference to photographic or video evidence. 22The Crown submits that Simpson J's comments suggest that an "ad hoc expert" does not require any degree of specialised knowledge based on training or expertise and can include somebody who simply has a degree of familiarity with the witness based upon prior contact. The Crown suggested the cases of Marsh [2005] NSWCCA 331 and Leung [1999] NSWCCA 287, further support this argument. Section 137 23With respect to s 137, the Crown submits that I would not take into account issues of reliability or credibility when assessing probative value. The Crown submits that the central issue in this case is one of identification. The evidence therefore has a very high degree of probative value. 24The Crown further submits there is no unfair prejudice in the admission of the evidence and that a jury, properly directed, would give the evidence the weight it deserves. Defence submissions Mr McCook 25Ms Cook submits on behalf of Mr McCook that the evidence of the Corrections Officers is not relevant pursuant to s 55 of the Evidence Act 1995. She argues the evidence should be excluded in accordance with the considerations enunciated by the High Court in Smith. Ms Cook submits that the degree of familiarity held by the officers in regards to Mr McCook did not differ significantly from that possessed by the police in Smith. Mr McCook was housed in area 1 for only three weeks prior to 21 June 2013. No evidence was put before the Court as to Mr Espie or Ms Church's rosters, how many musters they carried out during this period, nor whether either corrections officer escorted Mr McCook to a clinic or a legal appointment. Ms Cook argued that sometimes the muster involved less than 10 seconds contact with a prisoner. 26Ms Cook submits that in light of the evidence adduced on the voir dire, the facts in the present case are not in a vastly different category to those in Smith and the officers' evidence should therefore be excluded pursuant to s 55. Opinion evidence 27Ms Cook submits that if I was satisfied the evidence was relevant pursuant to s 55, I would exclude it under s 76. She argues that the evidence is not an exception to the opinion rule and that the requirements of s 79 have not been satisfied. She submits that the threshold of s 79 requires a basis of specialised knowledge which is then built on by either training, study or experience and that the familiarity the officers have with the accused is not based on any specialised knowledge or training. Section 137 28In the alternative, Ms Cook submits that if I find the evidence admissible pursuant to s 79, I would exclude it pursuant to s 137. She points to a number of factors relevant to an assessment of the probative value of the identification evidence including the evidence that Mr Raad had provided the names of the accused to Ms Evans as the men responsible for the attack upon him and that Ms Evans had relayed that information to Mr Espie. 29There was some evidence, it was argued, that the officers had spoken about the incident and were viewing the CCTV footage together and that I would be satisfied that there is a real possibility of contamination of the identification evidence. Defence submissions Mr Sterling 30Mr Brassil submits on behalf of Mr Sterling that the evidence of the Corrections Officers is not relevant pursuant to s 55 of the Evidence Act 1995. He argues that there was no evidence before me as to the number of occasions in the four month period that Mr Sterling was housed in area 1 that the Crown witnesses had face-to-face contact with the inmate. No records were produced as to when the witnesses did the musters. There is no evidence that Mr Espie and Ms Church have expertise in identifying persons reliably from CCTV footage. 31The agreed position is that Mr Sterling was housed in area 1 from 14 February 2013, a period just over four months prior to the incident. Section 79 32Mr Brassil submits that the witnesses gave no evidence that would establish expertise in their capacity to reliably identify persons from CCTV footage. He submits that at its highest, the witnesses had some familiarity with his client. However, that does not amount to a degree of expertise in recognising persons on what was submitted to be relatively poor CCTV footage. 33Mr Brassil points to the real possibility of contamination in the identification evidence by reason of the fact that the names of the accused had been provided to Ms Evans and Mr Espie before they watched the footage and the evidence of discussion about the footage before identification was made. He further submits that the evidence of possible contamination is an important factor when I come to determine the issue under s 79. Consideration of the Issues Relevance: 34The first question with any issue about the reception of evidence including identification, recognition or opinion evidence, is whether the evidence is relevant. In the High Court case Smith, two police officers gave evidence of identification of the appellant from bank photographs. Each said they had previous dealings with the appellant and recognised him as the person depicted in those photographs. 35Senior Constable Crampton said that he knew the appellant from three prior conversations with him all (under five minutes), the last being about a month before the incident. In all he estimated that he had had half a dozen encounters with the appellant all during daylight hours. 36Senior Constable Peterson said that he had previously spoken to the appellant on five or six occasions whilst working at Redfern and that he had arrested him a couple of times, on each occasion spending an estimate of two or three hours with the appellant. 37Although the number of occasions of prior contact were limited, each occasion involved conversation or interaction that took place over more than seconds. 38Neither police officer suggested that he had any basis for concluding that it is the appellant depicted in the bank photographs other than the knowledge he had gained of the appellant's physical appearance during the earlier encounters and whatever was revealed to a person who looked at the photographs that were produced in evidence. Throughout the trial of the appellant there was no suggestion that his appearance had changed from what it was at the time of the robbery, nor that the police were at some advantage therefore in recognising the person in the photographs. There is no suggestion in the present case that the evidence of Ms Church and Mr Espie is relevant to a change of appearance of the accused during the period from 21 June 2013 to the present. 39The plurality in Smith said: [9] the police witnesses were in no better position to make a comparison between the appellant and the person in the photographs than the jurors or, for that matter, some member of the public who had been sitting in court observing the proceedings.... Thus, not only was the issue that was raised a very narrow issue, the data available to the jury for its resolution was no different in any significant way from the data upon which the police officers based their asserted conclusion. The police officers' conclusions and the jury's conclusion both depended upon combining their observation of the appellant's appearance with the observation of the photographs. [11] Because the witness's assertion of identity was founded on material no different from the material available to the jury from its own observation, the witness's assertion that he recognised the appellant is not evidence that could rationally affect the assessment by the jury of the question we have identified. The fact that someone else has reached a conclusion about the identity of the accused and the person in the picture does not provide any logical basis for affecting the jury's assessment of the probability of the existence of that fact when the conclusion is based only on material that is not different in any substantial way from what is available to the jury. The process of reasoning from one fact (the depiction of a man in the security photographs) taken with another fact (the observed appearance of the accused) to the conclusion (that one is the depiction of the other) is neither a persistent, nor hindered, by knowing that some other person has, or has not, arrived at that conclusion. Indeed, if the assessment of probability is affected by that knowledge, it is not by any process of reasoning, but by the decision maker permitting substitution of the view of another, for the decision maker's own conclusion. 40The High Court said there may be cases where it will be relevant for a witness to give evidence that the witness recognises who is depicted in a photograph. For example, a case in which the witness deposes to having identified someone from a photograph, or a collection of photographs, shown to the witness and the identity of the person depicted is proved in some other way. Another example would be where it is suggested that there is some distinctive feature revealed by the photographs (for example a manner of walking), which would not be apparent to the jury in court. 41It is not entirely clear whether the plurality were of the view that if relevant, the evidence was opinion evidence. However I note, that in stating that where the evidence is relevant further questions of admissibility would then arise, the majority referred to ss 76, 135 and 137 only. 42In a separate judgement, Kirby J held that the evidence was relevant but not admissible because it was opinion evidence. I turn now to consider the evidence of the witnesses with respect to their familiarity with the accused. There is an obvious difference in the extent of contact between the witnesses and each accused and thereby the level of familiarity with each accused. Mr McCook 43Mr McCook had been in an area 1 for a period of three weeks prior to the incident. I accept the evidence of Ms Church and Mr Espie that they knew who he was and may have had some contact with him in that three week period. However, other than some vague evidence that they would have been working dayshift during that period I have no documents before me as to their roster for that period of time. I have no evidence of how many occasions during that three weeks they conducted musters in their capacity as acting supervisors, a position that involved less face-to-face contact with the inmates. 44The witnesses were unable to give evidence of any occasion where they had a one-on-one conversation with the accused, taken him to the clinic, or escorted him to visits. They were unable to give evidence of any occasion they could recall speaking to the accused. 45In light of the fact that this accused had only been in area one for a relatively short period, and in the absence of evidence that precisely sets out the number of occasions that the witnesses had contact or interacted with him, I am not able to infer that whatever contact they had with him was materially different from that which was before the court in the case of Smith. Accepting, that on some day or days during that three week period each of the witnesses conducted musters in area 1C, their contact with the accused would have been for a matter of seconds each time. In Smith, the police officers had prior encounters with the appellant that included conversations and arrests with some contact extending over hours. 46I am not satisfied that the evidence adduced by the Crown on the voir dire is materially different from the evidence that was available in Smith with respect to the degree of familiarity with Mr McCook. I am not therefore satisfied that there is a sufficient degree of familiarity with Mr McCook such that the witnesses are in a better position than the jury will be at the end of the trial. I am also satisfied, that the quality of the footage allegedly depicting Mr McCook is clearer than that depicting the man alleged to be Mr Sterling. 47In all the circumstances, the jury is in as good a position as Ms Church and Mr Espie to form their own conclusions about whether the accused McCook is one of the men depicted in the CCTV footage. 48Accordingly I find that the evidence of the Corrective Service Officers as to the identification of Mr McCook from the CCTV footage of the incident is not admissible. Mr Sterling 49I next turn to consider, the evidence adduced on the voir dire with respect to the witnesses familiarity with Mr Sterling. Ms Church and Mr Espie were unable to recall, with any precision, any occasion where they interacted with Mr Sterling. However in his case, Mr Sterling had been a detainee in area 1 from 14th February 2013, a period of over four months. Whilst I do not have the rosters of the witnesses before me, I am prepared to accept that during that four month period they would have had repeated contact with Mr Sterling, at the very least, during muster. 50For the purposes of ruling with respect to relevance, I have not taken into account the evidence about possible contamination of the identification by Mr Espie of this accused. The Crown submitted that in determining whether the evidence was relevant, that is, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of facts in issue in the proceedings, I would not have regard to evidence suggesting contamination. The evidence of the witnesses is that they identified Mr Sterling from the CCTV footage. If that evidence were accepted, it could rationally affect the assessment of fact in issue in this trial, namely identification. 51I am satisfied that the witnesses' contact with this accused over a period of four months in the environment described and procedures outlined in area 1, resulted in a level of familiarity that is materially different from the evidence in Smith. I have also had regard to the CCTV footage, which I have viewed several times. Some parts of that footage is clearer than other parts. For instance, the attack itself is clearly depicted. The clarity is such that a person watching the footage could assess the build and general height of the persons depicted on the screen. Some of the facial features of some of the men depicted are clearer than others. For example, the facial features of the man alleged to be Mr Sterling are quite blurred and not very clear. The familiarity of the witnesses with Mr Sterling, developed over a period of four months, places them in a position of advantage to identify him from the footage having regard to the fact that it is not very good quality. I have taken that into account in my determination of the issues under s 55. 52Having accepted that the evidence of Ms Church and Mr Espie is sufficiently different in quality from the evidence of the two police officers in Smith, I find that the evidence is relevant pursuant to s 55. 53It is not a necessary consequence that, having passed the relevance test, the evidence is admissible. The majority in Smith expressly alluded to the fact that evidence that is relevant might raise other questions, one of which was the opinion rule. I next turn to consider ss 76 and 79 of the Evidence Act. Sections 76 and 79 Evidence Act 54The authorities acknowledge the difficulty the common law had in defining the distinction between "opinion" testimony and 'fact" testimony. In the Court of Criminal Appeal judgment in Munderra Smith (1999) 47 NSWLR 419, Sheller JA (Grove and Hidden JJ agreeing), said that the evidence given by the police officers was not evidence of opinion but was direct evidence that the person shown in the photograph was the accused. They therefore held that as such the evidence was not excluded by s 76 of the Act. 55In the High Court judgment, Kirby J said that the evidence of the police officers was opinion and not fact. A view that was apparently shared by the majority having regard to what they said at [16] of the judgement. Some of the authorities recognise that there is a blurred boundary between "fact" and "opinion" testimony. Kirby J stated that the distinction between evidence of "fact" and evidence of "opinion" is one of degree rather than of kind [52]. For example, a statement identifying a person clearly depicted in a studio photograph as a partner or spouse would normally be regarded as a statement of fact. 56In Marsh [2005] NSWCCA 331, a photograph was published in a newspaper and the person depicted in it was recognised by his sister. It is apparent from her evidence that in part her certainty was derived from recognition of clothing worn by the person in the photograph. Her evidence fell into the category of "fact' testimony by virtue of her long-standing familiarity with her brother and her opportunity, over a lifetime, to observe his stature, stance and facial features. 57However, in the present case, the witnesses did not have the degree of familiarity with the accused sufficient to categorise their evidence as evidence of fact rather than opinion. 58In Drollett [2005] NSWCCA 356, the court had occasion to deal with an appeal where the trial judge had admitted evidence of a Corrective Service Officer, Mr Stephens, identifying the appellant in CCTV footage. He had seen three men, one of whom was the appellant, just as the melee was breaking up. He did not witness the attack but only what happened immediately after its conclusion. Mr Stephens had worked in the unit where the appellant was housed in the gaol for 14 months. He gave evidence on the voir dire from which it could be inferred that he had a reasonably high degree of familiarity with the appearance of the appellant. [48]. 59Simpson J (McClellan CJ at CL and Rothman J agreeing), held that his evidence was relevant because of the greater advantage he had compared with the jury in relation to his capacity to identify or recognise the appellant: [51]. 60Her honour considered the distinction between evidence of fact and evidence of opinion. In her analysis she identified that evidence of fact is given from a witness's recollection. "The original or primary evidence, is in reality, the description of the events given by the witness. The photographic material merely illustrates the oral testimony that the witness would be able to give describing the event in question".[55] 61In the case before her Honour, the primary evidence was CCTV footage and the witness's evidence was described as "no more than an educated interpretation of what was depicted on the footage". Accordingly, her Honour concluded that the evidence was opinion evidence. The Court held that the evidence was inadmissible, quashed the conviction and ordered a retrial. 62The Crown in the present case has categorised the evidence as opinion and not fact. In light of the above analysis I agree with that categorisation. The evidence of the witnesses that they looked at CCTV footage and identified or recognised the accused from that footage involved inferences or conclusions drawn from mental impressions of existing phenomena and past experience: (See judgment Kirby J at [52] in Smith). 63Opinion evidence is presumptively excluded by s 76 of the Evidence Act. Expert evidence is admissible pursuant to s 79 of the Evidence Act where a witness has specialised knowledge based on their training, study or experience and the opinion is "wholly or substantially based on that knowledge". 64The Crown relies upon the evidence of Ms Church and Mr Espie as "ad hoc expert" opinion. There are two questions that require consideration. The first is whether a category of "ad hoc expertise" survives the introduction of the Evidence Act and is contemplated by s 79 of the Act. If the answer to the first question is in the affirmative, the second question is whether the evidence of Ms Church and Mr Espie is "ad hoc expert" evidence. 65There have been a number of cases, subsequent to the introduction of the Evidence Act, where evidence has been admitted as "ad hoc expert" evidence. They include evidence of voice comparison, image comparison and the transcription of telephone or listening device material. 66The Crown relies on the case of Leung and Wong [1999] NSWCCA 287, where an issue arose as to the admissibility of voice identification and voice comparison by a witness, Mr Fung, who was a highly qualified and experienced interpreter, proficient in both Mandarin and Cantonese. He was provided with a number of recordings that he listened to repeatedly. He reached a conclusion by evaluating the pitch and the volume of the voices and the speed of the language used distinguishing three different voices which he nominated as M1, M2 and M3. 67His opinion evidence was admitted pursuant to s 79. In holding that the evidence was admissible, Simpson J noted that the idea of an "ad hoc expert" was endorsed by the High Court in Butera (1987) 164 CLR 180, a case also involving tape recordings of conversations mainly in the Punjabi language. Butera, was a pre-Evidence Act case. Her Honour also referred to the decisions of R v Eastman (1997) 158 ALR 107 and R v Cassar and Sleiman (unreported NSWSC 436) which were decided under rules of evidence identical to those under consideration, and where it was decided that the concept of "ad hoc expertise" continues to have application. Her Honour said: "For myself, I believe this section 79 is sufficiently wide to accommodate the idea of an ad hoc expert". 68The combined effect of these cases, which are self evidently binding on me, reflects acceptance that a category of evidence referred to as "ad hoc expert" evidence survives the introduction of s 79 of the Evidence Act. Whether it exists as a reflection of considered principle or as a result of judicial pragmatism in particular cases, for present purposes I am bound to give appropriate recognition to the concept of "ad hoc expertise." 69The answer to the first question must therefore be in the affirmative. It seems to me that the superior courts will in due course have to give more detailed consideration to the foundation, as a matter of principle, for the notion of "ad hoc expertise' and how such evidence meets the requirements set out in s 79: [see also R v Nguon & Ream NSW DC 31 March 2014 at [60]]. 70I must next consider whether the evidence of Ms Church and Mr Espie is "ad hoc expert" evidence. Although I have already held, with respect to Mr McCook, the evidence of these witnesses is not relevant and therefore inadmissible, my consideration of whether I would reject the evidence pursuant to s 76 is relevant to the case of each accused. 71The Crown submits that I would find that the evidence is "ad hoc expert" evidence. The Crown further submits that there is some support for that contention in the cases of Marsh and Drollett. In Marsh, Studdert J held that the evidence of the appellant's sister recognising him from a published photograph was evidence of fact rather than opinion. He observed at [32] that if the evidence of Ms Wood was properly regarded as opinion evidence, her close familiarity with the appellant could be regarded as "specialised knowledge" based upon "experience". His Honour relied upon the judgement of Simpson J in Leung where her Honour adverted to "ad hoc expertise" based on familiarity as a possible basis for exception from the opinion rule under s 79 of the Evidence Act. 72However, Leung was an entirely different case from the present. It involved trained and qualified interpreters who had specialised knowledge by virtue of that study and training to identify accents and intonation, which assisted them in distinguishing voices. In the course of applying their specialised knowledge in this regard, they were considered "ad hoc experts". 73Furthermore, in Marsh, there was no analysis as to how the evidence of Ms Wood satisfied the requirements of s 79 and in particular, the concept of "knowledge" as contemplated by that section. 74The Crown also relies on Simpson J's tentative view in Drollett, that the concept of "ad hoc expert" evidence is capable of including a person who has particular familiarity with another in such a way as to enable that person to give evidence identifying the other person by reference to photographic or video evidence. 75Contrary to that tentative view, is Kirby J's concluded view in Smith that the exception for admitting evidence based on specialised knowledge provided by s 79 of the Act could be disregarded, as there was no suggestion of such expertise in relation to the police officers' evidence. Their prior contact with the appellant did not amount to ad hoc expertise based on familiarity, nor did they claim any expertise in, for example, anatomical or photographic comparisons. His Honour concluded that whilst the opinion was relevant, it could be no more than a step in the process of investigation and detection that led to the appellant being charged and should be excluded as nothing more than a lay opinion upon a subject about which the jury were required to form their own opinion: [61]. 76The issue of "ad hoc expert" evidence was raised in Honeysett v The Queen [2014] HCA 29. The case involved the admission of evidence of similarity given by Professor Henneberg, an anatomist. His opinion was based upon a comparison of photographs of the accused with CCTV footage of the robbery. After comparing the images over several hours he identified a number of similarities between the accused and one of the perpetrators depicted in the footage. In the High Court, the respondent did not maintain the alternative position that the evidence was "ad hoc expert" evidence. In light of that concession, the issue of "ad hoc expertise" was not determined. 77However, with respect to s 79, the court said: [23] Section 79(1) states to conditions of admissibility: first, the witness must have "specialised knowledge based on the person's training, study or experience" and, secondly, the opinion must be "wholly or substantially based on that knowledge". The first condition directs attention to the existence of an area of "specialised knowledge". "Specialised knowledge" is to be distinguished from matters of "common knowledge". Specialised knowledge is knowledge which is outside that of persons who have not, by their training, study or experience acquired an understanding of the subject matter. It may be of the matters that are not of a scientific or technical kind and a person without any formal qualifications may acquire specialised knowledge by experience. However, the persons training, study or experience must result in the acquisition of knowledge. The Macquarie Dictionary defines "knowledge" as "acquaintance with facts, truths, or principles, as from study or investigation", and it is in this sense that it is used in s 79(1). The concept is captured in Blackmun J's formulation in Daubert v Merrell Dow Pharmaceuticals Inc 509 US 579 (1993): "the word 'knowledge' connotes more than subjective belief or unsupported speculation...[It] applies to any body of known facts or to anybody of ideas inferred from such facts or accepted as truths on good grounds. [24] The second condition of admissibility under s 79(1) allows that it will sometimes be difficult to separate from the body of specialised knowledge on which the expert's opinion depends "observations and knowledge of everyday affairs and events". It is sufficient that the opinion is substantially based on specialised knowledge based on training, study or experience. It must be presented in a way that makes it possible for a court to determine that it is so based. 78The specialised knowledge relied upon in the present case is familiarity with the accused as a result of prior contact with him by the witnesses in the course of performing their duties as correctives officers in area 1 over the relevant period. It is true that by reason of their employment the witnesses conducted face to photograph checks twice a day, being the lunch and evening musters. However, that task involved looking at the face of an inmate and comparing that to a photograph in the muster book. I am entitled to infer from the fact that it was a muster book kept for that very purpose of comparison, that the quality of the photographs within it was very good. 79There is no evidence before me as to the prior occasions when the witnesses looked at CCTV footage following incidents within the gaol with a view to identifying inmates. There is no evidence as to the methods used on any prior occasion, nor as to the degree of accuracy of prior identifications. Furthermore, there is no evidence as to the quality of the CCTV footage on prior occasions. Finally, there is no evidence before me as to how the witnesses took into account the blurriness, image distortion, shadows and other artefacts of the recording itself. 80In the absence of such evidence, I cannot be satisfied that the witnesses have specialised knowledge based upon their training study or experience and that their opinions are based wholly or substantially upon that specialised knowledge. It must be emphasised that the word 'knowledge' in the context of s 79 connotes more than subjective belief or unsupported speculation. The term applies "to any body of known facts or to any body of ideas inferred from such facts on good grounds". This was the definition adopted by Spigelman CJ in Tang v R (2006) A Crim R 377, as identified in Daubert. This definition was also referred to with approval in Honeysett v The Queen. 81It is important to carefully analyse what it was that the witnesses did and did not do in this case. They were not purporting to recall the identity of persons from an incident they had themselves witnessed. They were not purporting to give evidence based upon study, training or experience in the task of identifying persons from CCTV footage that was in part of poor quality. They did not purport to have any study, training or experience in image distortion inherent in CCTV footage. They did not point to any particular feature of the persons they nominated as the accused that led them to make their identification. For example there was no evidence that they recognised particular facial features, build, height, gait or posture. 82Their evidence is simply an assertion that in their opinion the persons depicted on the CCTV footage are the accused. It is an expression of a subjective belief and no more in my view. 83In determining that the evidence is inadmissible pursuant to s 79 I have also had regard, with respect to the evidence of Mr Espie, to the real possibility of contamination of his identification evidence. I am satisfied of the following: * That the complainant, Mr Raad, told Officer Evans that the accused were responsible for the attack upon him. He gave her this information either on the way to or at the clinic before she viewed the CCTV footage. * Mr Espie attended the clinic at some stage before he viewed the CCTV footage. * Mr Evans told Mr Espie what Mr Raad had told her including the fact that he had nominated the accused as the perpetrators. * Following that conversation, Mr Espie viewed the CCTV footage in a room where other officers were present. There were discussions about the footage and the persons depicted in it during the viewing. * The discussions included the officers suggesting to one another who they thought it was in the footage. 84The Crown conceded that in considering s 79 I was entitled to have regard to this evidence.It is relevant to my consideration of the basis of the identification and whether the opinion of Mr Espie is specialised knowledge based upon study training or experience, as opposed to a subjective belief based, either wholly or in part, on hearsay material. Section 137 85Ms Cook on behalf of her client also relies upon the provision under s 137 and submits that the probative value of the evidence, particularly of Mr Espie, is outweighed by the danger of unfair prejudice. During the course of oral argument, the Crown submitted that the probative value of the evidence of Mr Espie is high and is not outweighed by the danger of unfair prejudice. 86The settled position in New South Wales is that a trial judge is not entitled to have regard to reliability or credibility when assessing probative value under s 137: R v XY [2010] NSWCCA 121;R v Burton [2013] NSWCCA 335. 87When assessing the danger of unfair prejudice, I have had regard to the evidence of the real possibility that the identification made by Mr Espie is contaminated by hearsay material. If admitted, any challenge to the evidence of this witness's identification will necessarily involve placing evidence before the jury about contamination. The danger of unfair prejudice is that the jury might misuse the evidence by impermissibly reasoning that if all the officers came to an agreement about it, it must be accurate. There is also the danger of unfair prejudice that the jury would give the identification evidence of Mr Espie undue weight in circumstances where there is a real possibility that it is wholly or in part based upon hearsay material. A further basis of unfair prejudice, fairly alluded to by the Crown this morning, is that the accused in challenging the evidence of Mr Espie would not be able to question everyone he spoke to in the trial. 88In my view, the danger of unfair prejudice as identified is not capable of being cured by directions. I would therefore, have excluded the evidence of Mr Espie pursuant to s 137. 89Ms Church gave evidence that when she watched the CCTV footage on the first occasion she was alone. She did not discuss the footage or the identity of the persons depicted before she reached her conclusions. There is no evidence before me from which I could be satisfied that there is a real possibility that her identification is contaminated by hearsay assertions and discussions with fellow officers. In my view, the probative value of her evidence would not be outweighed by the danger of unfair prejudice. Ruling: Mr McCook: 90The evidence of the corrective services officers of identification of this accused from CCTV footage is not relevant and therefore inadmissible pursuant to s 55 of the Evidence Act. 91In the alternative, the evidence is opinion and excluded by the operation of s 76 of the Evidence Act. It does not fall into the category of exception provided under s 79. 92Had I found that the evidence was relevant and admissible under s 79, I would have excluded the evidence of Mr Espie in exercise of my discretion pursuant to s 137 of the Evidence Act. Mr Sterling: 93I find that the evidence of the Corrective Service Officers, Ms Church and Mr Espie, is relevant pursuant to s 55. 94However, it is opinion evidence and excluded by virtue of the operation of s 76. It is not specialised knowledge within the terms of s 79, and is therefore inadmissible. 95Had I found that the evidence was admissible as ad hoc expert evidence, I would have excluded the evidence of Mr Espie pursuant to s 137. ********** 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. Decision last updated: 25 November 2014