R v Keenan MUNDINE [2008] NSWCCA 55

New South Wales Court of Criminal Appeal

CITATION: R v Keenan MUNDINE [2008] NSWCCA 55

HEARING DATE(S): 15 February 2008

JUDGMENT DATE: 18 March 2008

JUDGMENT OF: McClellan CJ at CL at 1; Grove J at 2; Simpson J at 3

DECISION: Appeals allowed. Judgments of Solomon DCJ of 15 November 2007 and 19 November 2007 set aside.

CATCHWORDS: CRIMINAL LAW – Crown appeal against excluding evidence – exclusion such as to eliminate or substantially weaken Crown case – identification evidence – whether risk of unfair prejudice outweighed probative value – credibility and reliability not relevant to determination of probative value – evidence to be considered on the assumption that it is accepted by the jury – weight of the evidence may be taken into account when assessing unfair prejudice

Crimes Act 1900 LEGISLATION CITED: Criminal Appeal Act 1912 Evidence Act 1995

CATEGORY: Principal judgment

Adam v The Queen [2001] HCA 57; 207 CLR 96 Alexander v The Queen [1981] HCA 17; 145 CLR 395 Edwards v The Queen [1993] HCA 63; 178 CLR 193 CASES CITED : Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 R v Cook [2004] NSWCCA 52 R v Rahme [2004] NSWCCA 233 R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228

PARTIES: Regina (Applicant) Keenan Mundine (Respondent)

FILE NUMBER(S): CCA 2007/5329

COUNSEL: L Lamprati SC (Applicant) H White (Respondent)

SOLICITORS: S Kavanagh - Solicitor for Public Prosecutions (Applicant) Heenan & Company (Respondent)

LOWER COURT JURISDICTION: District Court

06/11/0658 LOWER COURT FILE NUMBER(S): 06/11/0659 06/11/0786

LOWER COURT JUDICIAL OFFICER: Solomon DCJ

LOWER COURT DATE OF DECISION: 15 November 2007 19 November 2007

IN THE COURT OF CRIMINAL APPEAL 2007/5329

McCLELLAN CJ at CL GROVE J SIMPSON J

18 March 2008 R v Keenan MUNDINE Judgment 1 McCLELLAN CJ at CL: I agree with Simpson J. 2 GROVE J: I agree with Simpson J. 3 SIMPSON J: Pursuant to s 5F(3A) of the Criminal Appeal Act 1912 the Director of Public Prosecutions appeals against two evidentiary rulings made by Solomon DCJ on, respectively, 15 and 19 November 2007. Section 5F(3A) permits an appeal against such a ruling only if the ruling eliminates or substantially weakens the prosecution's case. There is no dispute in the present case that such was the effect of the two rulings. The jurisdictional test is thus met. 4 Each ruling concerned identification evidence. 5 The respondent is charged with an offence against s 112 of the Crimes Act 1900, allegedly committed on 4 November 2005. The specific offence charged in the indictment is that the respondent, having been in the dwelling house of two named women, committed a serious indictable offence therein, and broke out of the premises, in a circumstance of aggravation. The "serious indictable offence" is stealing; the circumstance of aggravation is the malicious infliction of actual bodily harm on each of the two women occupants of the dwelling house. 6 Put shortly, the allegation is that, during the early hours of 4 November 2005, a male adult entered the home unit occupied by two women, Ms Jordan Vollmer and Ms Chrystelle Lanz. They were sleeping in the bedroom. The intruder placed a number of items in his pockets, and readied others for removal. He entered the bedroom and sat on the bed. The two women awoke. A confrontation ensued. This took place in the bedroom, and, later, in the living room. The confrontation became physical. The intruder punched each of the women. He then discarded the property in his pockets and attempted to leave, was temporarily prevented, but eventually escaped. Ms Vollmer suffered a cut lip and some bruises and was treated briefly at hospital. Ms Lanz suffered several cuts to the mouth, facial injuries and a bleeding nose and a broken bone in her left big toe which required surgery. It is the Crown case that the respondent was the intruder. 7 The evidence that the women would give in a trial was given on a voir dire conducted before the commencement of the trial. Each gave evidence of having identified the respondent as the intruder. 8 Their evidence is that the entire episode occupied about 20 minutes. Initially the only lighting was ambient lighting from outside the unit, but, during the last 15 minutes or so, was normal interior lighting as lights in the bedroom and living room were turned on by one or other of the women. Ms Vollmer and Ms Lanz had the intruder under observation for the whole of the time from when they awoke to when he left. They therefore had some considerable opportunity to observe him. 9 Shortly after the intruder escaped the two women were interviewed, together, by a police officer, Constable Winter. They gave what was described by Solomon DCJ as a "composite" description of the intruder. Constable Winter recorded this description in his notebook as: "… male, dark skin, possibly Abo[riginal], 5'10, medium, dark brown hair short about ½ inch, wearing white Nautica shirt t-shirt, knee length black cargo pants, dark bonds underwear, acne scarred face …" 10 Ms Lanz was then taken to hospital where she was treated for the broken bone in her toe. Ms Vollmer was also taken to hospital, treated in casualty, and discharged later that day. 11 Later that evening Ms Vollmer gave a statement to police. In this statement she gave the following description of the offender: "I would describe this man as being what I thought to be Aboriginal, he seemed to be of mixed between caucasian and aboriginal. His complexion seemed dark but not black. This man was around 5'10 inches tall and was of medium build, quite toned. He looked around early to mid twenties in age. The man had short straight dark brown hair. I think I could see a small scar on his left eyebrow and he had brown eyes …"

Also on the same day she took part in an identification process which was video recorded. The process involved her viewing a compact disc which contained images of 63 male individuals. 12 Because of the description given by Ms Vollmer the CD contained images predominantly of Aboriginal males. For the purposes of the video-recording, Constable Winter, who arranged the identification, said in the presence of Ms Vollmer: "What I, what I intend to do is to show her an, an offender CD from the Surry Hills Police that shows some of the local offenders and it's predominantly Aboriginal males and so I'm going to show her that and she's going to look through and we'll go from there."

Constable Winter then went on to inform Ms Vollmer that the persons depicted on the CD were not necessarily persons who had been convicted of criminal offences or who were in custody; nor was the person who had entered the apartment necessarily one of the persons depicted. He asked her not to discuss "the case" with any other witnesses, or disclose whether or not she made an identification. 13 Ms Vollmer identified the person depicted in image 42 as the person who had been present in her home unit. This was an image of the respondent. She was quite emphatic and very definite in her identification. The video-recording of the procedure was viewed during the course of the voir dire. It was also viewed by this Court on the hearing of the appeal. 14 Ms Lanz also participated in an identification process, but this occurred significantly later, on 20 December, after her discharge from hospital. 15 Ms Lanz was shown a different CD, with fewer individuals, but she also selected the image that depicted the respondent. She expressed herself as "95" or "99" percent confident of her identification. 16 Both Ms Vollmer and Ms Lanz were cross-examined as to whether or not Ms Vollmer had told Ms Lanz of her identification. Ms Vollmer denied having done so. However, she acknowledged that she "sensed" that Ms Lanz was aware of that fact. Ms Lanz said that she had been told (by Ms Vollmer) that Ms Vollmer had "selected a photograph". 17 Objection was taken to the admission of the evidence of identification by each witness on the basis of s 137 of the Evidence Act 1995. In two separate judgments, Solomon DCJ rejected the identification evidence of each witness. 18 The first judgment (15 November) concerned Ms Vollmer's evidence. His Honour accepted three propositions put to him on behalf of the respondent. These were: · that photograph identification is inherently unreliable (see Alexander v The Queen [1981] HCA 17; 145 CLR 395); · that the probative value of the identification evidence was diminished because the photo array on the CD was not representative of the description of the intruder given by the victims; · that the probative value of the identification evidence, being made by a white Anglo-Saxon female of an Aboriginal male, had less probative value than equivalent evidence by a person making an identification of a person of similar racial background. 19 To these His Honour added a reference to s 165(2) of the Evidence Act, which obliges a judge, where requested to do so, to warn the jury that identification evidence might be unreliable, inform the jury of the matters that might cause it to be unreliable, and warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. 20 Having regard to these considerations, Solomon DCJ concluded that the identification evidence of Ms Vollmer did not have strong probative value.

Danger of unfair prejudice 21 His Honour then proceeded to examine the danger of unfair prejudice. 22 The unfair prejudice asserted derived from the words used by the police officer, in the presence of Ms Vollmer, making clear that the persons depicted on the CD were all known to police as local offenders. This, if put before the jury, would disclose that the respondent was a person who had a criminal history. The Crown prosecutor accepted that the words were apt to cause some prejudice, but argued that they could readily be excised from the evidence. It would not be necessary for the jury to be told that all or most of the individuals depicted on the CD were known to police in the area. His Honour held that this created a dilemma for the respondent, of the kind mentioned by me in R v Cook [2004] NSWCCA 52. This was because counsel for the respondent argued that those words had, or might have, consciously or unconsciously, influenced Ms Vollmer into making the identification that she did. On the voir dire he cross-examined Ms Vollmer to this effect. The "dilemma", therefore, was that, if the words were not placed before the jury, counsel for the respondent would be deprived of the opportunity effectively to test Ms Vollmer's evidence; but if the words were placed before the jury, the fact that the respondent had some criminal history would necessarily be disclosed. 23 An analogy was drawn with the circumstances in Cook. There, put briefly, the accused was charged with an offence of sexual violence against a female. The Crown sought to adduce evidence that, following the offence, the accused visited another female at her home. This was a woman with whom he had previously been in a relationship but in respect of whom there was in existence an Apprehended Violence Order restraining him from contacting her. While he was at her home police arrived and the accused secreted himself in a ceiling cavity. The Crown sought to rely on this evidence as evidence of consciousness of guilt on the principles stated in, inter alia, Edwards v The Queen [1993] HCA 63; 178 CLR 193. 24 The dilemma there posed for the accused was that, if that evidence were called, he would be forced to provide some explanation for his conduct. If he did not, the jury could be expected to draw an inference that his conduct in hiding on the approach of police was indicative of a consciousness of guilt of the offence with which he was charged, whereas the true explanation, on his case, was that he was, and was aware that he was, guilty of a different offence, of breaching the Apprehended Violence Order. Providing that explanation would expose to the jury his criminal history. The situation was made more painful for him because the offence with which he was charged was of sexual violence towards a female – closely related to what one might infer to have been circumstances leading to the making of the Apprehended Violence Order. 25 With the concurrence of Ipp JA and Adams J, I held that the tests imposed by s 137 were met, and that the probative value of the evidence was outweighed by its unfair prejudicial effect. 26 The second judgment now under consideration concerned the evidence of Ms Lanz. Solomon DCJ took the same approach to the evaluation of the probative value of this evidence as he had taken to that of Ms Vollmer – that is he assessed its probative value as not high. The prejudice said to have been demonstrated in relation to Ms Lanz's evidence was the inability to cross-examine her about having been told by Ms Vollmer that she had made an identification – because Ms Vollmer's evidence had already been excluded. Counsel would have sought to cross-examine Ms Lanz to establish that she had been, consciously or unconsciously, influenced into making an identification by her knowledge that Ms Vollmer had done so. Once Ms Vollmer's evidence was excluded, he was deprived of the opportunity to make that attack on Ms Lanz's evidence. This, so the argument ran, created an unfair prejudice that outweighed the probative value of Ms Lanz's identification. 27 Identification evidence has long presented difficulties to this Court, and courts exercising criminal jurisdiction at first instance. The cases dealing with it are legion. 28 That s 165 of the Evidence Act specifically includes identification evidence as evidence of a kind which may be unreliable is statutory recognition of those difficulties. Judges are required to give quite strong and detailed warnings to juries concerning the dangers of acting on identification evidence. Nevertheless, it is evidence that is admissible, and in appropriate circumstances, can have significant probative value. 29 The task that Solomon DCJ was called upon to perform was the balancing exercise required by s 137 of the Evidence Act; the balancing exercise involves an assessment of the probative value of the evidence in question, weighed against any unfair prejudice that its admission might work on an accused person.

Evidence Act , s 137 30 Section 137 provides: "In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant." 31 "Probative value" is defined in the Dictionary to the Evidence Act as: "… the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue."

"The danger of unfair prejudice" is not defined.

Probative value 32 Not expressly to be found in the Evidence Act is an answer to an underlying question of interpretation: does the assessment of "probative value" incorporate or permit an assessment on the part of the judge of the credibility or reliability of the evidence? Or is the judge to proceed on the basis that the evidence will be accepted by the tribunal of fact and evaluate its probative value in the light of the other evidence, already given, or to be given? If the latter is the case then evidence identifying the respondent as the intruder was of very substantial probative value. It was evidence essential to the Crown case. But Solomon DCJ approached the question on the basis that the former is the case: that is, that in evaluating the probative value of the evidence, he was entitled and even required to assess its credibility or reliability. That is why he added the reference to s 165 of the Evidence Act. In doing so, he found significant flaws in the evidence, diminishing, in his view, the weight that could properly be attached to it. 33 Although some contrary views have been expressed (see, for example Papakosmas v The Queen [1999] HCA 37; 196 CLR 297, per McHugh J; R v Rahme [2004] NSWCCA 233, per Hulme J (dissenting), the prevailing wisdom is that it is not open to a trial judge, in assessing, for the purposes of s 137, the probative value of any piece of evidence, to take into account his/her evaluation of its reliability or of the credibility of the witness through whom it is tendered: R v Shamouil [2006] NSWCCA 112; 66 NSWLR 228 at [47]-[65], per Spigelman CJ; and see Adam v The Queen [2001] HCA 57; 207 CLR 96, per Gaudron J. That is, "probative value" is not to be determined by the weight that might be given to any piece of evidence. What is to be considered is the role that that piece of evidence, if accepted, would play in the resolution of a (disputed) fact – or the contribution it might, if accepted, make to that resolution. Apart from anything else, to make the assessment of probative value on the basis of the perceived credibility or reliability of the witness through whom it is given, or perceived weakness in the evidence, would be to attempt to anticipate the weight the jury would attach to it, a task to be undertaken by the jury when all the evidence is complete. 34 Logically, the first step in the evaluation of the probative value of any item of evidence is the identification of the "fact in issue" the probability of the existence of which could be affected by the evidence in question; here that "fact in issue" is the identity of the person who intruded into the home unit: that is, whether the respondent was that person. In the case of each witness, the evidence was positive identification of the respondent as that person and therefore, on its face, affected to a very considerable extent the probability that the respondent was the intruder – therefore, it had probative value to a high degree. 35 The argument put to Solomon DCJ, and accepted by him, was that that probative value was diminished by the three circumstances outlined above, that is: the inherent unreliability of photographic identification; asserted inadequacies in the matching of the images to the description of the intruder given by Ms Vollmer (I infer that what underlay this argument was the suggestion that, since the 62 images other than that of the respondent did not accord with that description, Ms Vollmer was, consciously or unconsciously, drawn to select the image of the respondent as that of the intruder, whereas, if others had more closely resembled that description, the task of selection would have been more difficult, but the ultimate selection, if made, more reliable); and asserted weaknesses inherent in cross-racial identification. 36 For these reasons, in combination, Solomon DCJ concluded that the evidence did "not have strong probative value". In doing so, he took into account the implied statutory recognition of potential weaknesses in identification evidence spelled out in s 165 of the Evidence Act. 37 In my opinion, in taking this approach to the assessment of the probative value of the evidence his Honour fell into the error referred to in Shamouil. He took into account the reliability of the evidence, and the credibility or reliability of the witnesses through whom, it was proposed, the evidence would be given. As was pointed out in Shamouil ([64]-[65]) this trespassed upon the function of the jury. 38 Considerations of unreliability of photographic identification, for the reasons set out in Alexander; of the weight to be attributed to the evidence by reason of similarities to or discrepancies between the various individuals portrayed and the description given by Ms Vollmer, and any frailties of interracial identification, are matters for the jury to weigh up and assess in the light of directions given to them. The s 165 consideration was, in my opinion, irrelevant. Section 165 is not material in determining, for the purposes of s 137, the probative value of evidence; s 165 is a provision which provides for protection of an accused person by requiring certain explicit instructions to be given to a jury where evidence may be unreliable. 39 In my opinion, error has been demonstrated in the approach taken to the assessment of "probative value". As I have indicated above, the evidence was essential to the Crown case, and therefore (assuming it was accepted by the jury) had a very high level of probative value. 40 The next question is whether that probative value was outweighed by the danger of unfair prejudice. 41 The argument ignored another, very important part of the evidence. Having indicated that the men portrayed on the CD were "local offenders" Constable Winter then went on to explain that Ms Vollmer should not assume that all the men depicted had criminal records. This ameliorated or nullified the unfortunate reference to "local offenders". Constable Winter made it clear that the intruder was not to be assumed to be among the array. 42 It is true that the Crown offered to excise those words from the transcript and from the sound recording, and, if this were done, the avenue of cross-examination counsel wished to pursue would have evaporated; but it was not necessary that the Crown offer be accepted. If the words were left in, the cross-examiner could have explored the issue, and directions could adequately have been given to bring home to the jury that they, like Ms Vollmer, should not make any assumptions about the respondent's criminal history. 43 There may have been some prejudice to the respondent in the words if put before the jury; if so it was, in my opinion, minimal and, given the high probative value of the evidence, it was certainly not such as to outweigh that probative value. 44 Although it is not open to a court performing the balancing exercise set by s 137 to take into account, on the assessment of probative value questions of the weight of the evidence, that is not so when assessing the issue of asserted "unfair prejudice". On the voir dire, Ms Vollmer was cross-examined about the possible effect on her of words "local offenders"; and Ms Lanz was cross-examined about the possible effect on her of knowing that Ms Vollmer had made an identification. Both vigorously denied any such effect. The cross-examination had little, if any, impact. 45 One might expect similar responses in a trial. That leads to the conclusion that the respondent was deprived of little, if anything, of value, if the words were excised and he was then unable to cross-examine as indicated. 46 Whether the words were excised or not was, in the end, a matter for the respondent's counsel. Either way, there was no unfair prejudice. 47 A further consideration is this: the offending words used by Constable Winter applied equally to all the images shown to Ms Vollmer. It is one thing to suggest that they may have influenced her to make a suggestion; it does not explain why she selected the image of the respondent. 48 In Cook I concluded ([38]) that, where a balancing exercise under s 137 has been shown to have been made on an erroneous basis, the judgment can be undertaken afresh by an appellate court. In my opinion that ought to be done in this case. 49 The probative value of the evidence of each witness, leaving aside considerations of reliability or credibility, upon which I make no comment, is very high indeed. With respect to the evidence of Ms Vollmer, the danger of unfair prejudice is very low indeed. 50 In my opinion the appeal against the ruling concerning Ms Vollmer's evidence ought to be allowed, and the judgment of Solomon DCJ of 15 November 2007 be set aside. 51 That has this effect. The unfair prejudice said to arise in respect of Ms Lanz's evidence is removed. There would be no reason why Ms Lanz could not be cross-examined with a view to showing that she was influenced with making a selection by her knowledge that Ms Vollmer had done so. Again, that leaves unexplained the circumstance that Ms Lanz selected the image of the respondent. 52 In my opinion, the appeal against the ruling concerning Ms Lanz's evidence ought also to be allowed, and the judgment of Solomon DCJ of 19 November 2007 be set aside. **********

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