Cope v The Queen
[2018] VSCA 261
•01/01/2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0177
| GREGORY JOHN CHALLENGER | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WHELAN, PRIEST and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 12 October 2018 |
| DATE OF JUDGMENT: | 12 October 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 261 |
| JUDGMENT APPEALED FROM: | DPP v Challenger (Unreported, County Court of Victoria, Judge Hogan, 2 August 2018) |
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CRIMINAL LAW — Interlocutory appeal — Pending trial for aggravated rape and attempted aggravated rape in 1986 — Identification from photoboard by complainant 30 years later — Whether evidence admissible as ‘identification evidence’ — Whether improper conduct by police — Whether probative value of evidence outweighed by risk of unfair prejudice — Evidence admissible — Evidence Act 2008 ss 114, 137 and 138.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr L W G Hartnett and Mr C K Wareham | Criminal Lawyers Geelong |
| For the Respondent | Mr J Gullaci | Mr J Cain, Solicitor for Public Prosecutions |
WHELAN JA
PRIEST JA
McLEISH JA:
Introduction
In the early hours of New Year’s Day 1986, ‘SD’, a woman aged 21 years, was brutally assaulted and gang-raped in Lorne by two men, one of whom had a moustache.
A little over thirty years later, on 3 March 2016, police showed SD a manila folder containing twelve photographs (‘the photoboard’). She selected a photograph of the applicant as being one of her assailants (‘the photoboard identification’). Less than a week later, on 9 March 2016, police arrested the applicant and charged him with aggravated rape (and other charges).
An indictment filed in the County Court charges the applicant with attempted aggravated rape[1] (charge 1) and aggravated rape[2] (charges 2, 3 and 4). On a pre-empanelment voir dire, the applicant challenged the admissibility of the photoboard identification evidence. By a ruling dated 2 August 2018, however, the trial judge held the evidence of the photoboard identification to be admissible (‘the ruling’ or ‘the interlocutory decision’).
[1]Section 45(4) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1980.
[2]Section 45(3) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1980.
Pursuant to certification of the trial judge under s 295(3)(a) of the Criminal Procedure Act 2009 (‘CPA’) given on 3 August 2018, the applicant seeks leave to appeal against the interlocutory decision on the following grounds:
1. The learned trial judge erred by admitting the photoboard evidence as ‘identification evidence’.
2.The learned trial judge erred by failing to exclude the photoboard evidence, pursuant to s 138 of the Evidence Act, in circumstances where the evidence was improperly obtained because:
i. The police used a photo of the applicant closest to the description initially given by the complainant, rather than the photo of the applicant closest in time to the offending;
ii. The police failed to read to the complainant a summary of the offence prior to undertaking the photoboard identification process;
iii. The complainant was not provided with a copy of the initial PhotoFit she completed in 1986 prior to undertaking the photoboard identification process;
iv. The complainant was not provided with a copy of her contemporaneous statement.
3.The learned trial judge erred by failing to exclude the photoboard identification evidence, pursuant to s 137 of the Evidence Act, in circumstances where the probative value of the evidence was outweighed by the danger of unfair prejudice.
In our view, none of the grounds has merit. For the reasons that follow, the judge’s ruling is, in our opinion, correct. Leave to appeal against the interlocutory decision must therefore be refused.
The alleged offending
As we have said, SD was attacked by at least two men in the early hours of 1 January 1986. Within a few hours of the attack upon her, at 2.40 pm, SD signed a police statement.[3] In that statement, SD described her activities prior to midnight on the previous evening. She then described going to the beach with a new acquaintance, ‘Peter’. The statement then continues:
[3]In evidence at committal proceedings on 20 February 2017, SD affirmed that the contents of the statement were true and correct.
… We stayed at the breakwater end of the beach. We must have sat there for three quarters of an hour or an hour. We were just talking, and getting to know each other.
I turned around and noticed that there were people lying in the sand dunes watching us. I thought it looked like there were three people there. Peter stood up, and told them to ‘Nick off, and mind their own business’ or something like that. They got up then, and came down and stood around us. I saw that there were four of them. We had carried a blanket with us, and were sitting on that. One of them sat down on the blanket, in front of me, and said ‘How about a New Year’s kiss?’. I told him to get lost.
Two of the others then started grabbing at me. I backed up against the stones on the breakwater, and started screaming and yelling. While I was screaming, I could hear Peter yelling out for them to leave me alone. I couldn't see him, and after that I didn't see or hear him. One of them, the one with the moustache, then told me to ‘shut up’ or ‘be quiet’ or something like that. Then he hit me, twice, with his closed right fist. The first blow struck me on the right cheek, just below my right eye. The next blow struck me on the right side of my scalp. I felt my skin tear, and I started bleeding. I went hysterical, and started crying.
The one with the moustache then tore my jeans from me, and my underpants came off with the Jeans. He pulled his jeans down to his knees. He tried to insert his penis into my vagina, but I clamped up, and just lay there crying. He couldn’t penetrate my vagina with his penis, so he then told me to ‘suck on this’. He then placed his penis into my mouth, whilst I was still lying on the ground. He was moving it in and out, while he made me suck on it. It seemed that he had his penis in my mouth for a long time. I think it must have been about five or ten minutes, and then he ejaculated semen into my mouth. I choked, and tried to spit it out, and got it all over the left shoulder of the jumper I was wearing.
They both then pulled me up, and picked up the blanket. I was dazed, and trying to see where I was bleeding from. They dragged me along by the arm, I think it was the left arm which they were holding, and took me up to the barbed wire fence, where the dunes start. One of them, or I think it must have been both of them, told me to climb over the barbed wire fence. I told them that I was not going to. They then draped the blanket over the fence, and just dragged me across it. I think I was dragged over it on my back. I remember I tried to grab it with my right hand, and I got scratched on that hand. I don’t remember feeling getting scratched on my back, but I didn’t have any scratches there before, so I must have got them then.
The one with the moustache had hold of my arm, and he dragged me across from the fence, sort of diagonally to near the back. The other one must have carried the blanket, because when we stopped, the one with the moustache threw me down on top of the blanket. Then he held me down. The other one dropped his jeans, and got on top of me. He was trying to enter my vagina with his penis. I started to cry again, and asked them to leave me alone. The one with the moustache told me to ‘Shut up, or he’d hit me again’ or ‘hurt me again’. I’m not sure which it was. The tip of his penis was all that entered my vagina. I was lying there, really stiffly, although I was too scared to do more than that. He couldn’t get his penis all the way into my vagina, so he slid up on top of me more, and pushed his penis into my mouth. He was moving his penis up and down inside my mouth. Suddenly someone shouted, ‘Hey, is everything all right. What’s going on here?’. I looked around, and I saw a male person coming down a walkway about one meter and a half away. I hadn’t seen the walkway before. The person who was on top of me said, ‘Everything’s all right’. I yelled out ‘Yes, there’s something wrong’. The person who was on top of me turned around to look, and I jumped up and ran across to the fence. I climbed over the fence, and another male person was coming up the path. He said, ‘What's going on, are you all right?’. I said ‘No, I’m not. Get me out of here’.
I started to run down the beach, towards where I’d left my things. This other person ran down just behind me. I saw my jeans, and put them on. I didn’t see my underwear, but it was in the leg of my jeans. I didn’t stop to put them on. The person who was there, then, said ‘Bob down in the shade’, but I was too scared to trust him, so I ran down to the road then ran behind the sand dunes. I turned right onto the road, which was running away from them. I ran for about a hundred metres, and then I saw the caravans across a paddock. I climbed the fence into the paddock, and ran across it, sticking close to the wall. I got to the caravans, and hid behind a car for a moment. I couldn’t see anyone coming, so I got up and walked through the caravan park to the main road. I saw one girl and two guys walking away from me, heading up the main road. I ran and caught up to them, and asked them if they could show me where the police station was. They then walked with me all the way to the police station. I went into the police station, and reported the incident to the man on duty there.
It is clear from SD’s narrative that four men approached her and ‘Peter’, but that two — one of whom had a moustache — were actively involved in raping her. SD made it clear that the man with the moustache told her to ‘shut up’ or ‘be quiet’ and hit her twice, causing her to bleed; pulled off her jeans and underwear; attempted penile-vaginal sex; and then penetrated her mouth to the point of ejaculation. In trying to spit the moustachioed man’s semen from her mouth, SD deposited it over the left shoulder of her jumper. The man with the moustache also dragged SD over a fence; threw her on a blanket; held her down; and once more threatened her as one of his companions raped her vaginally and orally.
The original investigation
Prior to making her statement, at 11.45 am, SD was medically examined by a police surgeon, Dr David Fitzgerald. He noted that SD had an abrasion measuring half a centimetre to her head six centimetres above the right ear; swelling of her scalp and a moderate amount of clotted blood in her hair; a slight bruise under her right eye and marked swelling of the right cheek; a linear scratch across the flexor aspect of the distal phalanx and red scratch marks inside her upper arm; a linear scratch mark around the base of the near eminence and red scratch marks inside her upper arm; a horizontal linear abrasion on the medial margin of her right breast; multiple scratch marks, two to five centimetres long, covering both buttocks, generally running in the ‘head to toe’ direction; and fresh blood at the introitus (SD menstruating at the time of examination). Swabs and slides were taken from SD’s mouth, anus and vagina, and a blood sample was also taken, these specimens being supplied to the investigator, Detective Tony Warren. Doctor Fitzgerald’s opinion was: ‘Findings consistent with recent superficial trauma and with previous penetration’.
Significantly, SD’s clothing — including the yellow coloured jumper onto which she spat the semen of the man with the moustache — was taken by the police for forensic examination. Various items, including the yellow jumper, were delivered to the Forensic Science Laboratory on 26 February 1986. Between June and July 1986, the items were examined. A laboratory report, dated 15 August 1986, prepared by forensic scientist, John Scheffer, recorded that preliminary tests indicated there were seminal stains on the front of the yellow jumper (item 3). There were also blood stains on SD’s jeans, shirt, jumper, and panties. The laboratory report stated that samples of the suspected seminal stains and the blood stains were retained in the laboratory. Samples of material from the yellow jumper were then stored in a freezer.
After making her statement, SD looked through photobooks kept by the police, but she was unable to identify either of the men who raped her. (The evidence does not disclose that the applicant’s photograph was among those that SD viewed.)
Police investigating the offences against SD also made an appeal for information in an article published on 3 January 1986 in the Geelong Advertiser newspaper. The article contained a ‘photofit’ image[4] produced by the Police Identification Squad on the previous day, based on the description given by SD of the man with the moustache. Despite police efforts, however, no possible suspects were identified and the investigation stalled.
[4]Also referred to in evidence as an ‘Identikit’.
A ‘cold case’ revived
In 2012, the Victoria Police Forensic Science Centre (‘VPFSC’) commenced the ‘Cold Case Freezer Project’, which involved the DNA testing of samples from historical cases which had been stored in a freezer. A sample cut from the front of SD’s yellow jumper in 1986 provided a DNA profile which was uploaded for possible future DNA comparison. Later, in 2015, a DNA sample was obtained from the applicant and uploaded to the National DNA database, generating a ‘hit’ between his DNA profile and the DNA profile obtained from the yellow jumper in 2012.
As a result of the DNA ‘hit’ obtained in 2015, on 26 October 2015 Detective Sergeant Nigel Freebairn, then attached to the Cold Case–Sexual Crimes Squad, reactivated the investigation into SD’s rape almost thirty years earlier. Detective Freebairn arrested the applicant on 9 March 2016, and obtained another sample from him — by way of buccal swab — for the purposes of DNA analysis. The sample so obtained was provided to the VPFSC on 21 March 2016. Subsequent analysis revealed that it was 100 billion times more likely that the applicant was a contributor to the DNA found on sample 3-1 — a piece of yellow material taken from below the neckline in the centre of SD’s jumper — and sample 3-3 — a piece of yellow material taken from the front left upper arm of SD’s jumper — than another person chosen at random from the Australian caucasian population. Testing also revealed the presence of spermatozoa in both samples.
The photoboard identification
As we have said, prior to arresting the applicant, on 3 March 2016 police showed SD a manila folder photoboard containing twelve photographs.
On the voir dire, Detective Freebairn gave evidence that prior to compiling the photobook he had a conversation with SD about whether she would be able to identify her attacker. Part of his evidence was as follows:
[PROSECUTOR] Prior to compiling … this photo book, had you liaised at all with the complainant?---Yes, I have.
And how did that come about?---I had a conversation with her to ask whether she thought if she saw a photograph of the person responsible, whether she would be in a position to identify.
What do you mean the person responsible?---The accused.
Well, you knew about the [DNA] match?---Yes.
In your discussion with the complainant, what exactly did you refer to?---I asked whether she’d recognise the man that had assaulted her if she saw him again.
And by the man who assaulted her, what do you mean by that? There were two who she says assaulted her?---The only … person that she could provide information and description about was the person that the Identikit related to. The person that the Identikit related to was the person that left the biological evidence, who is the accused.
…
… And so you asked her that question. What did she say?---She said that she was hopeful that she would and believed that she may.
So was that before you compiled the photo board?---It was, yes, because the reason I wanted to canvass the question was to determine whether or not it was worthwhile compiling a photo board in the first place.
After SD’s indication that she believed that she may be able to identify her attacker, Detective Freebairn prepared the photoboard with which this application is concerned.
As to her viewing of the photoboard, SD made a statement to Detective Senior Constable Phillip Paine at 10.46 am on 3 March 2016,[5] which contains the following:[6]
[5]In evidence at committal proceedings on 20 February 2017, SD affirmed that the contents of the statement were true and correct.
[6]Although the main body of the statement is type-written, the italicised portions are in handwriting.
On Wednesday the 2nd day of March 2016, I was asked by Detective Sergeant Nigel FREEBAIRN if I was available to view images / Photographs. I am a victim regarding a sexual assault which occurred at Lome on the 1st of January 1986.
On Thursday the 3rd day of March 2016, Police attended at my residence at which time I then had the following conversation with Detective Senior Constable Phillip PAINE:
He said:
‘You will be asked to look at a group of photographic images. The fact that the images are shown to you should not influence your judgement.
You should not conclude or guess that the group of photographs contain the image of the person/item you have been asked to identify.
You are not obliged in any way to identify anyone or anything.
Please view each photograph carefully and indicate if you can identify any person/item whose photograph is displayed herein.
Please do not discuss the case with other witnesses, nor indicate, to other witnesses in any way that you have or have not identified someone or something.’
I was then handed a manila folder. I opened the folder and observed a number of photographic images of male persons. I identified this photo folder to be Photo Board number INTRHONCHIAL-PB.
I viewed each image and identified the image marked as Number 5.
I indicated to Photo Number 5, by putting my finger on it and saying it is him. It is his eyes.
Under cross-examination by defence counsel during the applicant’s committal proceedings, the applicant was unable to say whether the photo she selected was the man with the moustache or her other attacker:
[DEFENCE COUNEL] When you were looking at the photo board, did you think, ‘Look, I’m looking for the man with the moustache’ or - - -?---Um, no.
You picked No.5. So you pick – you nominated someone from that photoboard. Was that the man with the moustache or the other person?---Yeah, no, I don’t know.
Detective Paine described SD’s identification from the photoboard in a statement dated 3 March 2016.[7] It contained the following:
[7]In his evidence at committal proceedings on 20 February 2017, Detective Paine swore that the contents of the statement were true and correct.
On Thursday the 3rd of March, 2016, at approximately 10.37am I attended at [redacted] in company with Detective Sergeant Nigel FREEBAIRN. At this location FREEBAIRN introduced me to a female who I know to be [SD], the victim in this matter regarding a sexual assault which occurred in Lorne on the 1st of January, 1986.
FREEBAIRN then left the premises at which time I had the following conversation with [SD]:
I said,‘You will be asked to look at a group of photographic images. The fact that the images are shown to you should not influence your judgement. You should not conclude or guess that the group of photographs contain the image of the person[[8]] you have been asked to identify. You are not obliged in any way to identify anyone.[[9]] Please view each photograph carefully and indicate if you can identify any person[[10]] whose photograph is displayed herein. Please do not discuss the case with other witnesses, nor indicate to other witnesses in any way that you have or have not identified someone.[[11]]’
I then handed [SD a] closed manila folder which contained 12 photographic images of male persons. I identified this photo folder to be Photo Board number ‘INTRHONCHIAL-PB’ produced by Detective Sergeant FREEBAIRN on the 4th of February, 2016.
I observed [SD] open the folder and begin to view images contained within. [SD] appeared to become startled and immediately looked away. She then began to shake.
I said, ‘Are you okay [SD]?’
[SD] then placed her right index finger on image number 5.
She said, ‘It is him. It is his eyes’.
[SD] then closed the manila folder, closed her eyes and began taking a number of deep breathes [sic.]. I asked her again if she was okay to which she replied that she was and stated that she just needed a minute. After gaining her composure [SD] then signed a statement as to identifying image number 5.
After the completion of signing her statement I left [SD] momentarily and walked out onto [redacted] Street and advised FREEBAIRN that the photo board viewing was complete.
[8]Compare the wording at [17] above.
[9]Compare the wording at [17] above.
[10]Compare the wording at [17] above.
[11]Compare the wording at [17] above.
The interlocutory decision
On the voir dire, the prosecutor accepted that the prosecution could not shy away from SD’s evidence at committal that, when she nominated photo number 5, she did not know if that was the man with the moustache or the other man. The prosecutor submitted, however, that the complainant’s evidence satisfied the definition of ‘identification evidence’ in the Evidence Act 2008 (‘the Act’). Ultimately, the prosecution sought to rely on SD’s evidence as putting the applicant at the scene as one of the two assailants.
Relying on Bass,[12] defence counsel submitted that the photoboard identification evidence was not identification evidence within the meaning of the Act. Counsel submitted that SD’s evidence at committal that she did not know, when she picked photograph number five, whether that was the man with the moustache or the other man, was insufficient to link the description that she had given to police of the main offender back in 1986 to the applicant. Alternatively, counsel argued that the evidence should be excluded pursuant to ss 137 and 138 of the Act. Counsel argued that there had been impropriety on Detective Freebairn’s part; and, additionally, that various things that he had done had resulted in unfairness — to both SD and the applicant — and resulted in such a weakening of the probative value of the evidence that such probative value as it possessed was outweighed by the risk of unfair prejudice. In particular, the applicant’s trial counsel relied on the following:
[12]DPP v Bass [2016] VSCA 110 (Priest, Santamaria and Kyrou JJA) (‘Bass’).
· The photoboard identification process did not comply with the provisions of the Victoria Police Manual guidelines concerning identification parades. In particular, the investigating officer, Detective Freebairn, should have been present during the identification process, and the police officer conducting the identification process, Detective Paine, should have read aloud a summary about the offence prepared by the investigating officer.
· Detective Freebairn had acted unfairly by not providing SD with her statement of 1 January 1986, and the photofit image, prior to the photoboard identification process so that she could refresh her memory.
· Detective Freebairn had admitted that some months prior to the photoboard identification process taking place, he had asked SD whether she thought, if she saw a photograph of the person responsible, she would be able to identify him, thereby corrupting the photoboard identification (by indicating that a photograph of the person responsible would be on the photo board).
· Detective Freebairn manipulated the photoboard identification process by deliberately selecting a photograph of the applicant which was taken by police in or about March 1987 (that is, some 14 months after the alleged offence), since it showed him with a moustache or facial hair (in an endeavour to match the description given thirty years previously). This was improper, when there was a photograph available of the applicant taken by police in February 1986, some six weeks after the offence.
In ruling the photoboard identification evidence to be admissible, the judge made the following essential findings:
· The fact that the complainant’s photoboard identification evidence falls short of positive identification of the applicant as the man with the moustache does not mean that the evidence ceases to be of relevance. In the circumstances, the evidence is capable of being probative of the fact that the applicant was present at the scene of the crime (either the man with the moustache or the other person).
· Although the identification evidence might be considered ‘weak’ because of the lapse of time, that does not render the evidence inadmissible. Unless there is another legitimate basis for excluding the evidence, ‘it should be considered by the jury, together with all other admissible evidence’.
· There is no substance in the submission that Detective Freebairn should have been present when SD viewed the photoboard.
· Further, there is no substance in the submission that the police should have read aloud a summary of the offence to SD, given that ‘the complainant can have been in no doubt about the offences to which the photoboard identification related, namely, those which had been reported by her to police on 1 January 1986 and said to have occurred on that day‘.
· There was no impropriety in Detective Freebairn failing to provide SD with her statement of 1 January 1986 or the photofit image in order to refresh her memory prior to the photoboard identification. Indeed, one of the ‘well-recognised dangers of photoboard identification is that of displacement’. In those circumstances, it would have been ‘inappropriate and improper’ to show SD her statement and the photofit image, since the ‘process of photoboard identification is something which should be approached without there being any suggestibility of any kind to the person undertaking the process’.
· As to the method of compiling the photoboard her Honour said:
I do not find that there is anything improper in the process undertaken by Detective Freebairn. Indeed, the photoboard, itself, seems to me to be a very fair one and certainly in compliance with the Victoria Police Manual procedures and guidelines relating to the construction and use of photograph folders or photoboards. In particular, the background of each photo has been standardised so as not to suggest that the photos depict persons in police custody. The 11 other photographs depict persons of similar age and appearance to the accused, all photographs are of the same type (coloured) and of the same profile (full face and side on) and are numbered.
The 1987 photograph of the accused is not so vastly removed in time from the commission of the offence as to be unfair. In any event, when the complainant pointed to photo five, she stated: ‘It’s the eyes’ in support of her assertion that ‘It’s him’. She did not articulate that she relied upon the presence of a moustache. Indeed, her evidence at committal was that she had forgotten about the moustache and only remembered it when she re-read her statement. Hence, even if I am incorrect in finding that the use of the 1987 photograph with the moustache was not unfair, there is no evidence that that factor affected the complainant’s choice of photograph five. She mentioned only one salient identifying factor as why she said ‘It’s him’ and that was ‘It’s the eyes’. There is no evidence that the accused’s eyes had altered from their appearance in the photograph of him taken in 1986 to the date upon which the photograph was taken of him in 1987. In my view, Detective Freebairn was at pains not to influence the photoboard identification process and this ground of impropriety is not made out and, hence, provides no reason for excluding the evidence.
· The photoboard identification process was not ‘polluted’ or ‘corrupted’ by Detective Freebairn. He did not convey to SD ‘that she would be shown a photo of the person responsible for the crimes against her on a photoboard’.
· There was thus no impropriety justifying exclusion of the photoboard identification evidence under s 138 of the Act.
· Nor was there any basis for excluding the evidence under s 137, on the basis that the probative value of the evidence was outweighed by the risk of unfair prejudice.
· Ultimately, the judge observed:
Accordingly, I have determined that the evidence of the photoboard identification made by the complainant on 3 March 2016 does meet the definition of identification evidence. It is admissible as relevant and probative evidence that the person in Photograph 5, the accused, was present at the scene when the offences were committed against the complainant on 1 January 1986, albeit that it cannot be evidence that the person identified was the man whom the complainant had described in her statement as the man with the moustache, the main offender. By itself, it is not evidence of positive identification of the accused as the offender who committed the offences with which he is charged. It is one piece of evidence which a jury is entitled to consider in determining their verdict. What weight it places upon it is a matter for the jury after being given appropriate directions concerning identification evidence.
As we have indicated, we consider that the judge’s ruling was correct.
The applicant’s contentions
In support of the first ground on this application, the applicant’s counsel drew attention to the following passages from Bass:[13]
So far as visual identification evidence is concerned, as a matter of ordinary language, in order for a witness to assert that the accused ‘resembles ... a person who was, present’ at or near the place where the relevant offence was committed, the witness must, in effect, assert that he or she has seen both the accused and a person at or near the place where the relevant offence was committed, and that, based on his or her observations of their physical features, the accused resembles that person.
It follows that we agree with Odgers that s 114 of the [Act] will not apply to evidence of a description of a person alleged to be the accused ‘unless the person testifying as to the description takes the next step of asserting some resemblance between the person described and the [accused]’.[14]
[13]Bass, [38]–[39]. Citations in the original.
[14]Stephen Odgers, Uniform Evidence Law in Victoria (Thomson Reuters, 2nd ed, 2013) 602 [1.3.9520].
Counsel for the applicant submitted that the vagueness of the complainant’s comments — ‘It is him. It’s the eyes’ — is insufficient for the evidence to be regarded as ‘identification evidence’ within the meaning of the Act. The evidence, counsel submitted, is just ‘too vague’.
With respect to the second ground, counsel for the applicant submitted that the photoboard identification evidence was improperly obtained by virtue of Detective Freebairn’s selection of a photo calculated to ‘jog’ the complainant’s memory. In preparing the photoboard, it was submitted, Detective Freebairn had been provided with three images of the applicant, taken when he was arrested in 1982, 1986 and 1987. Detective Freebairn acted improperly in that, having read SD’s statement, he selected the photo taken of the applicant in 1987 — in which the applicant had facial hair — rather than the photo taken some six weeks after the offending. The informant ought to have used the photograph taken closest in time to the offending, rather than a photo taken some 14 months later where there was an indication that the accused had ‘some facial hair’. Furthermore, it was submitted that the complainant was not read a summary of the offending, nor provided with a copy of her earlier statement or the photofit she provided. This, too, was improper. The vagueness of the identification, and the gravity and deliberate nature of the impropriety, counsel contended, dictate that ‘the desirability of the admission of the evidence is outweighed by the undesirability of its admission’.
Finally, under cover of ground 3, counsel for the applicant submitted that the probative value of the photoboard identification evidence is substantially outweighed by the danger of unfair prejudice to the applicant in circumstances where the prosecution case is that the applicant is the main offender; the initial complaint made by the complainant in 1986 makes no mention of the eyes of any of the attackers; the identification evidence is ‘vague’; and the manner in which the photo of the applicant came to be selected is unsatisfactory.
Discussion
The Dictionary to the Act defines ‘identification evidence’ as follows:
identification evidence means evidence that is—
(a) an assertion by a person to the effect that an accused was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where—
(i)the offence for which the accused is being prosecuted was committed; or
(ii)an act connected to that offence was done—
at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time; or
(b) a report (whether oral or in writing) of such an assertion.
For present purposes, s 114(2) of the Act provides that visual identification evidence adduced by the prosecution is not admissible unless it would not have been reasonable to have held an identification parade and ‘the identification was made without the person who made it having been intentionally influenced to identify the accused’.[15]
[15]Subsections 114(1) and (2) of the Act provide:
114 Exclusion of visual identification evidence
(1) In this section, visual identification evidence means identification evidence relating to an identification based wholly or partly on what a person saw but does not include picture identification evidence.
(2) Visual identification evidence adduced by the prosecutor is not admissible unless—
(a)an identification parade that included the accused was held before the identification was made; or
(b)it would not have been reasonable to have held such a parade; or
(c)the accused refused to take part in such a parade—
and the identification was made without the person who made it having been intentionally influenced to identify the accused.
In our opinion, the photoboard identification evidence in this case is, as the trial judge found, ‘identification evidence’ within the meaning of the Act, since, properly characterised, the evidence amounts to an assertion by SD to the effect that, at the time that the offences against her were committed, the applicant was a person who was present at or near a place where they were committed, that assertion being based wholly or partly on what SD saw (‘or otherwise perceived’) at that time and place.
It is not disputed that, prior to police attempting any photoboard identification, Detective Freebairn had asked SD whether she might be able to identify the person who had attacked her. She, Detective Freebairn said, ‘was hopeful that she would and believed that she may’. It was against that background that Detective Paine provided the photoboard to SD, having cautioned her to ‘view each photograph carefully and indicate if [she] can identify any person’. As the evidence reveals, SD viewed the images, appeared to become startled, immediately looked away and began to shake, before placing her right index finger on photograph 5, saying ‘It is him. It is his eyes’. Although in her evidence at committal SD said that she did not know whether the photograph of the man she selected was ‘the man with the moustache or the other person’, it is plain that she was asserting that he was one or the other. Indeed, it is fanciful to suggest that, when she selected photograph 5, the complainant was doing other than purporting to identify a person who was present at or near a place where the offences were committed at the time that they were committed. The photoboard identification evidence therefore is ‘identification evidence’ for the purposes of the Act; and, given that it is ‘visual identification evidence’, it owes its admissibility — subject to other exclusionary provisions — to s 114 of the Act.
Self-evidently, after the effluxion of thirty years, it would have been wholly impractical for investigating police to have attempted to conduct an identification parade. Hence, subject to it being established that the photoboard identification was made without SD ‘having been intentionally influenced to identify the [applicant]’, the evidence was admissible.
In our view, there is no basis on the evidence upon which it could be concluded that SD had intentionally been influenced to identify the applicant. Indeed, the evidence points in the other direction. That is why it is difficult to understand the criticism levelled at Detective Freebairn that, prior to having SD undertake the photoboard identification process, he did not provide her with a copy of her statement or the photofit image. In cross-examination, Detective Fairbairn gave the following evidence:[16]
[DEFENCE COUNSEL] Well why wouldn’t you let [the complainant] refresh her memory from – this is 30 years ago. You’re asking about an incident 30 years ago. You’re referring to the person who’s shown in the identikit. That’s the person that you think is [the applicant], but the identikit – you said it’s not [the applicant] – but nevertheless, why wouldn’t you – 30 years later, why wouldn’t you say to a witness, look this is a long time ago, would you like to refresh your memory from the statement, refresh your memory from an identikit? Why wouldn’t you do that?---Well strategically, because we provide little information with a view of not re-traumatising the person. That’s something that we do, and we deal with psychologically when we’re dealing with people that have been sexual assaulted in this manner over such a period of time.
So that’s the only reason you didn’t do that?---I’m getting to it. I’m giving you a whole suite of reasons. In terms of the first meeting that I had with her, my notes highlight the fact that it was a very scant conversation, and limited information was provided. In terms of not showing her the identikit, it’s absolutely improper to be showing anyone an identikit, clearly, before you’re asking them to view photographs.
[16]Emphasis added.
One might well have expected that had he shown SD the photofit image prior to the attempted identification from the photoboard, Detective Freebairn would likely have been subject to the criticism that he had sought to influence the complainant by doing so. As the trial judge correctly observed, had police provided the photofit image to SD in advance of the photoboard identification process, ‘this may well have carried an unacceptable risk that the complainant would look for a photo on the photoboard to try to match it, rather than what was in her own memory about the appearance of an offender’.
Moreover, there is no substance in the criticism that Detective Freebairn had manipulated the photoboard identification process by choosing a photograph of the applicant taken on 28 March 1987 where he had a moustache or facial hair, rather than one taken on 17 February 1986, nearer to the date of the alleged incident, in which he had no moustache or facial hair.
On the voir dire, Detective Freebairn said that he had three photographs of the applicant available to him — a photograph taken in 1982, and the photographs from 1986 and 1987. He said that the reason he chose the 1987 photo for inclusion in the photoboard ‘was that it was the only of the three … in existence that indicated some facial hair on the accused‘. Detective Freebairn also gave the following evidence about the compilation of the photoboard:[17]
[17]Emphasis added.
[PROSECUTOR] So, those other photographs, from where were they obtained?---They were obtained using a Victoria Police system known as iFace and they are photographs that are collated and collected from various Victoria Police sources such as criminal … history records, photographs. And I also believe licencing and registration and a few other internal sources within Victoria Police.
And did you do anything to alter any of those other images?---I didn’t but I enlisted the assistance of a member from the Criminal Identification Squad.
So were some alterations performed?---Yes, the accused at No.5 had an earring. The others did not so they were able to be digitally enhanced to include an earring on all other participants.
And, a bit hard to make out on our copy, but if you hold up those - your photo board, you can see earrings, can you, on all those men?---I can, yes.
Yes. And what about facial hair?---No, no there was no alteration to facial hair in any of the images. The only digital alteration was the earring.
So all of those other 11 men had some facial hair of some description.
...
Why did you decide facial hair was important?---Well because the description of the only person able to be identified or described by the complainant in her description in her statement mentioned a moustache and also the identikit that was provided by the complainant also had a person with a moustache.
As we have mentioned, the trial judge found that there was nothing improper in the process undertaken by Detective Freebairn. She observed that the photoboard seemed to ‘be a very fair one and certainly in compliance with the Victoria Police Manual procedures and guidelines relating to the construction and use of photograph folders or photoboards’. This observation was undoubtedly correct. So much is clear when regard is had to the relevant police guidelines. Hence, in the sub-chapter headed ‘Guidelines – Identifying Offenders’ — which immediately succeeds the sub-chapter dealing with the conduct of identification parades — the Victoria Police Manual contains the following guidelines for the conduct of police:
3. Verifying the identity of a suspect – Other methods
3.1 Picture identification
A witness may be asked to examine a photograph of a suspect placed amongst other photographs when one of the exceptions to the requirement to conduct identification parades under s.114, Evidence Act 2008 (detailed in VPMP Crime reporting and investigations), applies.
Construction and use of photograph folders or photo-boards –
• The photograph of one suspect is presented with eleven other photographs.
• If the suspect is in custody the photo used must be taken during that custody, unless:
— the suspect's appearance has changed significantly from the time of the offence; or
— it was not reasonably practicable to take a picture after the suspect was taken into that custody
• Photographs must:
— be photographs kept for law enforcement purposes
— have backgrounds and photograph sheets removed so only the person is shown and the photographs do not suggest that they depict persons in police custody
— depict persons of similar age and appearance as the suspect
— be of the same type (e.g., all black and white or all colour, all passport photos)
— be of the same profile type (e.g., all full body profiles)
— be numbered (refer to this number in witness statements regarding identification).
Moreover, we agree with the trial judge’s assessment that there was nothing in the photoboard itself that might have influenced SD’s identification. The background of each photograph is standard, and does not suggest that the photos depict persons in police custody. Apart from the applicant’s photograph, the 11 other photographs depict men of similar age and appearance to the applicant; and all of the photographs are in colour, depict the full face and are numbered.
Further, the photograph of the applicant from 1987 is not so temporally separated from the commission of the offence in 1986 as to be unfair. It will be remembered that, when she selected the applicant’s photo, SD remarked, ‘It is the eyes’ in apparent support of the assertion that, ‘It is him’. (The moustache or facial hair appeared to play no part in her selection of photograph number 5, her evidence at committal being that she had forgotten about the moustache and only remembered it when she read her statement after the photoboard identification had been completed.) There is no suggestion that the appearance of the applicant’s eyes in 1987 differed from their appearance in 1986. Thus the contention that the use of the 1987 photo somehow polluted the photoboard identification process, or was otherwise unfair, is without merit. Indeed, the trial judge was correct to observe that ‘Detective Freebairn was at pains not to influence the photoboard identification process’.
For these reasons, there is no substance whatsoever in the contention that there was any improper conduct on the part of investigating police. There was thus no occasion for the photoboard identification evidence to be ruled inadmissible, either by reason of s 114(2), or s 138(1), of the Act. Neither was SD’s identification from the photoboard ‘intentionally influenced’ by police; nor was it obtained ‘improperly or in contravention of an Australian law’, or ‘in consequence of an impropriety or of a contravention of an Australian law’.
Finally, the trial judge was correct in finding that the probative value of the evidence was not outweighed by the risk of unfair prejudice. Even if it be assumed in the applicant’s favour that the identification evidence is weak because of the effluxion of time between the offence and the identification — a matter about which minds might differ — that of itself is not a ground for excluding the evidence under s 137 of the Act. As was made clear in IMM,[18] the assessment of probative value for the purposes of s 137 ‘requires that the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue’.[19] Questions of the credibility and reliability of the evidence do not intrude[20] (evidence ‘which is inherently incredible or fanciful or preposterous’ not meeting the threshold requirement of relevance).[21] The trial judge is required ‘to assume that the jury would find the evidence to be credible and otherwise reliable and to ask, on that assumption, whether the jury could rationally infer from the evidence that the existence of a fact in issue is more or less probable’.[22]
[18]IMM v The Queen (2016) 257 CLR 300.
[19]Ibid 314 [47] (French CJ, Kiefel, Bell and Keane JJ). See also 313 [44].
[20]Ibid 316 [54].
[21]Ibid 317 [58].
[22]Ibid 321 [83].
In oral argument, counsel for the applicant sought to contend that the identification evidence in this case was akin to the ‘foggy conditions’ example discussed in IMM.[23] We do not agree. It was open to the judge to find that the impugned evidence was capable of supporting the inference that the applicant was present when SD was attacked, the credibility and reliability of the evidence being a matter for the jury. Even if one assesses the probative value of the evidence as being low, the identification evidence taken at its highest has the limited capacity to rationally affect the assessment of the probability that the applicant was one of SD’s assailants.[24]
[23]Ibid 314–5 [50].
[24]See Dickman v The Queen (2017) 344 ALR 474, 483 [43] (Kiefel CJ and Bell, Keane, Nettle and Edelman JJ).
Conclusion
For the foregoing reasons, none of the grounds can be upheld.
The application for leave to appeal against the interlocutory decision is refused.
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