R v NGUYEN & ORS - admissibility evidence [2006] NSWSC 834

Supreme Court New South Wales

Medium Neutral Citation: R v NGUYEN & ORS - admissibility evidence [2006] NSWSC 834 Hearing dates: 20 April 2006 Decision date: 29 August 2006 Jurisdiction: Common Law Before: Hulme J Decision: See paragraph 42 Category: Procedural and other rulings Parties: Regina Khanh Hoang Nguyen Minh Thy Huynh Duong Nguyen ATCN Representation: Counsel: Crown: Ms W Robinson SC Khan Nguyen: Mr C Simpson Minh Huynh: Mr W Terracini SC Duong Nguyen: Mr R Button SC ATCN: Mr PD Young SC

Solicitors: Crown: S Kavanagh Prisoners: S O'Connor File Number(s): SC 2005/191; 2005/189; 2005/205; 2005/424

Judgment 1. HIS HONOUR: These reasons relate to a ruling I made on 20 April last (Transcript p 767) that certain evidence from 2 police officers, Senior Constables Young and Purcell was admissible. The evidence was of observations each officer had made of the Accused and also to the effect that, on viewing images recorded by means of 2 CCTV cameras located at the scene of the murder with which the Accused were charged, the officers could identify each of the Accused as one of the persons depicted. 2. The evidence was objected to. With his usual clarity Mr Button, appearing for Duong Nguyen, identified the grounds of objection as:- (i) That the evidence is irrelevant and thus inadmissible pursuant to section 55 of the Evidence Act; (ii) It is not opinion evidence; (iii) If it is opinion evidence, it is neither admissible lay opinion evidence, or admissible expert opinion evidence; and (iv) If the evidence is otherwise admissible, it should be rejected under section 137 of the Evidence Act. 1. Other counsel objected on similar grounds, albeit drawing attention to aspects of the evidence particularly relevant to their clients. 2. Mr Button conceded that not all objections applied to all aspects of the evidence on which the Crown sought to rely. It was made clear that the evidence that was the principal subject of objection was the evidence to the effect that the persons depicted on the CCTV footage, and the still photographs produced from it, were the Accused. The point was also made that if that evidence was admitted, it would logically be accompanied by evidence of prior observations by the police officers of the Accused and this would be prejudicial. Mr Button made it clear that he did not suggest evidence wherein the police officers described methods of movement or usual clothing of his client was irrelevant, although maintaining his claim of prejudice. 3. On 12 April last I delivered reasons which cover in part similar issues but dealing with the evidence of a witness Amee Duong whose acquaintanceship with the Accused, at least on her evidence, was significantly different from that of the officers. As I said in those reasons:- "The question arose against a background of a Crown case that 4 persons had entered a billiard hall, and walked through it. One, possibly two had moved into a courtyard at the back where a party was in progress. There, one of the 4 had fired 3 or 4 shots, fatally injuring Linda Hunyh and wounding another person, Hien Duc Phan. The passage of 4 persons towards the back of the billiard hall and the return passage of some of them had been captured on 2 CCTV cameras mounted on the ceiling inside the hall itself. One, probably the major, issue in the case is whether any of the Accused were among the 4 persons whose images were so captured. A tape recording the images captured by those cameras is in evidence. As is commonly the case, the CCTV images are much less clear than studio portraits. The quality of the images varies from one frame to another and also varies as between the 4 persons. From the point of view of identification many of the images are useless. The best is certainly no better than fair and that description would be regarded by many as an overstatement. 1. In the days immediately prior to 20 April, a voir dire enquiry was held during the course of which the officers' statements were tendered, they gave additional oral evidence in chief and were cross-examined. Other evidence was also admitted and I had regard to some of the evidence previously tendered in the trial. I also had regard to observations I had made of the Accused and of photographs in evidence and to which I shall later refer. 2. In his statement of 16 March 2004, Senior Constable Young said that he had been stationed at Cabramatta since 1995 and his duties had included beat policing and bike squad duties. Since 1996 he had met with Khanh Nguyen on well over 100 occasions and met with each of the other accused on at least 50 occasions. He had seen Khanh in the company of the others. On occasions he had spent in excess of half an hour in face-to-face contact with all four and described one particular occasion on 7 November 2003 when he had had conversation with all but ATCN. 3. Constable Young said that in the early morning of 7 January 2004, i.e. some few hours after the shooting, he had been recalled to duty and viewed the CCTV footage. The substance of his evidence was that on first viewing the footage he had identified the first man depicted as Duong or another man Anh and the second man as ATCN. He was unable to recognise the third man and observed the fourth to be similar to Khanh, relating some features of the fourth man seen to features he had previously observed Khanh to display. 4. Later that day Constable Young saw some still photos taken from the CCTV footage. He then positively identified the first man as Duong, comparing some of the first man's characteristics including his walk and carriage to that of Duong. Seeing a still photo of the second man confirmed his view that it was ATCN. The only feature referred to specifically was hair, length, colour and style. 5. On seeing the still photo of the third male Constable Young identified him as Minh Huynh. On seeing the still photo of the fourth man Constable Young identified him as Khanh Nguyen, again comparing some of the features of that man with Khanh. 6. In cross-examination by Button, Constable Young referred to Duong as having a noticeable style of walk which he described and which was different from Anh's. He said that this style is to be seen on the CCTV footage although he could not remember whether he had noticed it on his first viewing. He seemed to indicate that it was the whole aspect of the first person depicted that led him to think that person was, as one of 2 possibilities, Duong. However there was some apparent shadowing of the face that also raised the possibility it was Anh. Constable Young agreed with the proposition that looking at the still photos did not indicated anything about the manner of movement of the first person depicted. 7. Asked to describe the attributes or characteristics of Duong that led him to believe that the first person depicted was Duong, all Constable Young said was:- "…It's just a strange walk. He's got a very narrow face and very prominent cheek bones which the combination of the two are unique, the two together, it's not just that it's a skeletal, it's also narrow. They're the characteristics that at the moment that are unique but then I've also expressed other characteristics, as you say build the picture that is Duong." (sic) 1. During cross-examination by Young, Constable Young was asked to describe what was distinctive about ATCN's face. He said:- "(A)part from the hair, he's got very angled eyebrows. Most people they come across like that (witness indicated). His seem to arch up and they add a real angle to his face. Quite a boy-ish face and quite, it's quite a round face, but the eyebrows can make it seem more angular." 1. Taken to one of the photographs in evidence, ti was suggested that the person depicted had thinner face than ATCN. The witness said that it was very hard for him because of a difference in hairstyle. He disagreed with a later suggestion that in a photograph the jaw seemed to be thrust forward and again that the face depicted was narrower than that of ATCN. This and later cross-examination and the witness' answers demonstrated the difficulty that defining a facial appearance by factual descriptions presents. 2. Constable Young also referred to ATCN having a distinctive walk, often with his hands behind his back. The second man depicted on the CCTV footage walked that way. 3. Mr Terracini cross-examined about the height of persons relative to the billiard tables and on the topic of the lack of detail to be detected in the CCTV footage of the third man, suggesting that that lack of detail made it impossible for his client and perhaps any person to be identified from it. 4. In cross-examination by Mr Simpson on behalf of Khanh Nguyen, Constable Young again referred to an mannerism of apparent excitement that Khanh tended to exhibit and said that this was a factor he had observed on the CCTV footage. He referred also to hair, a skeletal bony face, a slim build and height but said that those were not the only things. He said that it was not easy to describe some of the attributes and that his identification was because he knew all of the Accused so well. 5. Senior Constable Purcell described having been involved in very extensive police duties in and around the streets of Cabramatta from about 1998 until 2004. He said that during most of this time he had seen Khanh on a near weekly basis including on at least 2 occasions between 30 December 2003 and 8 January 2004, speaking to him often at least to some extent. He said he had known Duong for 2½ to 3 years, seeing him many times. Constable Young said that he rarely spoke to Duong although he recounted some occasions when he had. He described some characteristics, including clothing and manner of walking. 6. He said that he knew ATCN for about 12 months and for the last few months seeing him on many occasions. He described his hair and a somewhat distinctive manner of walking. He said that he had known Huynh for at least 2 years. 7. Senior Constable Purcell gave evidence that on watching the CCTV on the morning of 7 January 2004, he immediately and with absolute certainty recognised Duong and the second person as ATCN. He did not recognise men 3 and 4 as they walked into the billiard hall and headed towards the back. When two of the men were exiting he believed one of them to be Khanh. 8. He re-watched the CCTV, pausing on man number 4 and realised this was definitely Khanh. Some time later he saw still photographs and on seeing one showing man number 3 recognised him without doubt as Huynh. His 9. In support of the submission that the identification evidence was irrelevant, much reliance was placed on the decision of the High Court in Smith v R (2001) 206 CLR 650. Mr Button submitted that the majority of the High Court in that case had laid down a broad test of inadmissibility of identification evidence, although recognising some exceptions. I disagree. 10. The gravamen of the majority's view that the identification evidence in that case was inadmissible lay in the following passage at [10 – 11]:- "I an assertion, in evidence, by a witness that he not recognises, or has previously recognised, the person who is depicted in those photographs relevant evidence? That is, in the language of s55 of the Evidence Act, could that evidence, if accepted, rationally affect the assessment by the jury of the probability that it is the person standing trial who is depicted in the photographs? 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 provided 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 nether assisted, 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." (emphasis added) 1. That it was this identity of material which underlay the Court's decision in that case is made further apparent when the majority turned to some of the circumstances where, subject to considerations other than relevance, evidence was admissible. Having identified some such situations, the judges continued, at [15]:- "In other cases, the evidence of identification will be relevant because it goes to an issue about the presence or absence of some identifying feature other than one apparent from observing the accused on trial and the photograph which is said to depict the accused. Thus if it is suggested that the appearance of the accused, at trial, differs in some significant way from the accused's appearance at the time of the offence, that the picture depicted the accused as he or she appeared at that time would not be irrelevant. Or if it is suggested that there is some distinctive feature revealed by the photographs (as for example a manner of walking) which would not be apparent to the jury in court, evidence both of that fact and the witness's conclusion of identity would not be irrelevant." (emphasis in the original) 1. The evidence of Senior Constables Young and Purcell made it clear that there were differences between the appearance of each of the Accused at about the time of the offence with which they have been charged and their appearance at the time of trial, differences which in the circumstances of the material available to the jury I regarded as significant. It is unnecessary for the purposes of these reasons that I detail those differences. Most are referred to in the transcript at pages 623-6 (Constable Purcell) and at pages 663-6 (Constable Young). 2. Prior to the officers giving evidence I myself had noticed differences between the appearance of each of the accused in the dock and their appearance as depicted in photographs tendered in evidence in the trial, some of which photographs had been taken at about the time of their arrest and some earlier. After the conclusion of evidence but prior to submissions on the voir dire I indicated to counsel in a document which became MFI 14 and subject to an order it be kept in the Court file my impressions in this regard. No counsel sought to argue against the existence of the differences reflected in the document and which in part at least accorded with the evidence given by the police officers. As a matter of convenience, I attach a copy of MFI 14 (531 KB, pdf) to these reasons. 3. Thus the circumstances here are significantly different from those the subject of remark in Smith v R. In the case of all Accused, the constables' assertions of identity are founded on material appreciably different from that available to the jury. It was thus not irrelevant on the basis evidence in Smith v R was held to be. Once that ground is put aside, it is clear that the constables' evidence is relevant.