Derek Pace (a pseudonym) v The Queen , , Seth Collins (a pseudonym) and the Queen
[2014] VSCA 317
•5 December 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0254
| DEREK PACE (A PSEUDONYM) | Applicant |
| v | |
| THE QUEEN | Respondent |
| S APCR 2014 0255 | |
| SETH COLLINS (A PSEUDONYM) | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 4 December 2014 |
| DATE OF JUDGMENT: | 5 December 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 317 |
| RULING APPEALED FROM: | DPP v [Pace, Collins and Anor] (Unreported, County Court of Victoria, 25 November 2014, Judge Ryan) |
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APPLICATION FOR LEAVE TO APPEAL AGAINST INTERLOCUTORY DECISION UNDER S 295 OF THE CRIMINAL PROCEDURE ACT 2009
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant [Pace] | Mr I J Polak | Revill & Papa |
| For the Applicant [Collins] | Ms F H Todd with Mr S Norton | Robert Stary Lawyers |
| For the Crown | Mr N B Batten | Mr C Hyland, Solicitor for Public Prosecutions |
PRIEST JA
BEACH JA:
Introduction
Pursuant to certification of the trial judge under s 293(3)(a) of the Criminal Procedure Act 2009 (‘CPA’), the applicants seek leave to appeal an interlocutory decision made on 25 November 2014 in which his Honour refused to exclude certain ‘picture identification evidence’.
For the reasons that follow, we would refuse leave to appeal.
Applications for leave to appeal interlocutory decisions are governed by s 297 of the CPA, which relevantly provides:
297 When leave to appeal may be given
(1) Subject to subsection (2), the Court of Appeal may give leave to appeal against an interlocutory decision only if the court is satisfied that it is in the interests of justice to do so, having regard to —
(a) the extent of any disruption or delay to the trial process that may arise if leave is given; and
(b) whether the determination of the appeal against the interlocutory decision may –
(i) render the trial unnecessary; or
(ii) substantially reduce the time required for the trial; or
(iii)resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial; or
(iv)reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial; and
(c) any other matter that the court considers relevant.
(2) The Court of Appeal must not give leave to appeal after the trial has commenced, unless the reasons for doing so clearly outweigh any disruption to the trial.
…
As we have said, leave to appeal will be refused. Since, in our opinion, the trial judge’s ruling is plainly correct, it could not be said to be in the interests of justice to grant leave to appeal. We acknowledge, however, that the trial has not yet commenced, so that there would be no great ‘disruption or delay to the trial process’ if leave was given.[1] Moreover, it cannot be gainsaid that, had the applicants ultimately succeeded, the trial might have been rendered unnecessary.[2]
[1]CPA, s 297(1)(b).
[2]CPA, s 297(1)(b)(i).
Background
Each of the applicants is charged, together with ‘JGE’, with one charge of intentionally causing serious injury to ‘MA’ in circumstances of gross violence[3] (charge 1), and, alternatively, one charge of recklessly causing serious injury to MA in circumstances of gross violence[4] (charge 2). The ‘circumstances of gross violence’ pleaded in the indictment are said to be that each of them ‘in a joint criminal enterprise with two or more other persons caused the serious injury’.[5]
[3]Crimes Act 1958, s 15A.
[4]Crimes Act 1958, s 15BA.
[5]We note that the circumstances of gross violence pleaded in each charge subtly depart from the statutory language in s 15A(2) and s 15BA(2).
The trial judge refused to exclude evidence of identification of each applicant as two of three men who assaulted the complainant on the basis that the evidence was inadmissible — or otherwise subject to exclusion — under ss 115, 135, 137 and 138 of the Evidence Act2008 (‘the Act’). Each applicant submitted that the ‘picture identification evidence’ was inadmissible because the pictures examined by MA suggest that they are pictures of persons in police custody. Further, each applicant relied on a variety of factors said to enliven ss 135,[6] 137 and 138 of the Act, so as to justify the exclusion of the evidence.
[6]Counsel for the applicants in this Court eschewed any reliance on s 135.
The circumstances of the alleged offending
At around 10.00 am on 17 August 2013, MA was found by his girlfriend in an injured state at 76 Geelong Road, Footscray. An ambulance was called. MA gave paramedics an account inconsistent with having been assaulted. His Glasgow coma scale was normal, although a blood test taken at the Alfred Hospital at 11.55am on 17 August later rendered a blood alcohol concentration in the range of 0.05 per cent to 0.88 per cent. (The relevance of this is that MA told police that he was assaulted at about 10.00 pm the previous night, so that his blood alcohol concentration at that time was estimated to have been in the range of between 0.207 percent and 0.358 per cent.) He could not explain why his clothes were wet. In answer to questions asked by paramedics, he said that he had drunk a lot of alcohol, and could have sustained injuries from falling over while drunk.
MA was transported by ambulance to the Alfred Hospital. He had sustained the following injuries:
· acute right hemispheric subdural haemorrhage;
· acute left frontal extradural haemorrhage;
· extensive subdural haematoma from the T6 vertebrae to the sacrum;
· a broken nose;
· left zygomatic arch fracture of uncertain acuity;
· acute transverse fracture through the mid shaft of the proximal phalanx of the right middle finger with a volar displacement of the distal fragment by the width of the shaft;
· rhabdomyolysis;
· full thickness left ear laceration through cartilage; and
· multiple lacerations to the scalp, right leg, head, face and both arms.
On 18 and 19 August, the complainant had his lacerations sutured, and had surgical intervention to repair his broken finger. Following this treatment, on 30 August 2013 the complainant was transferred from the Alfred Hospital to Caulfield Neurorehabilitation.
The prosecution case is that the day before MA was found by his girlfriend in an injured state, on 16 August 2013, the complainant and a friend, Akoc Deng, went to Deng’s former residence at 76 Geelong Road, Footscray, to collect some belongings. When they arrived, the applicants, JGE and several others, were at the property drinking. Deng collected his belonging and left, but the complainant stayed. After Deng left, Pace and JGE accused the complainant of being a ‘snitch’. At about 10.00 pm, the applicants and JGE overpowered and restrained the complainant with an electrical cord. Pace then stabbed the complainant with scissors in the left upper arm and stuck him across the head ’a couple of times’ with an ‘egg flip’, causing a large laceration to his forehead. Collins struck the complainant on the right arm with a fork. The complainant fell to the ground and tried to protect himself. While the complainant was on the ground, Pace hit him with a metal pole, JGE hit him with a wooden object and Collins also hit him with something. At least one of the men urinated on the complainant while he was on the ground, and Pace threatened to kill him. After the complainant tried to escape, Collins threw him to the ground while Pace cut his left ear with scissors. All three men jumped on the complainants back until he stopped moving. He was told he was not to go outside until morning. The complainant eventually escaped to the laundry, where he was found by his girlfriend, and was, as we have said, eventually taken to hospital.
The circumstances of the identification
The informant first spoke to the complainant on 17 August 2013 at 12.50 pm at the Alfred Hospital, and formed the opinion that he was not in a fit state to make a statement. MA did, however, provide some details, which the informant noted: ‘Living room, electrical cord, egg flip, scissors, wood, fan’. The informant’s notes record that ‘3 males’ were named by MA: ‘1. [JGE] 2. [Collins] 3. ”Killer”’. The informant’s opinion was, at that stage, that he did not have enough information to identify either Collins[7] or ‘Killer’, although MA had indicated that each man was known to him. Indeed, when asked in cross-examination whether he’s made any inquiries about Collins[8] between 17 and 20 August 2013, the informant said: ‘There’s no doubt that [Collins] to me could have been a number of three or four people that I was familiar with, by either first name, last name. I didn’t know that was his last name. It could have been his first name.’.
[7]It should be noted that, although the Court has assigned the pseudonym ‘Derek Pace’, the applicant’s given and surnames are the same.
[8]Plural.
The informant returned to the Alfred Hospital the next day, but again MA was not in a fit state to make a statement.
On 19 August 2013, the informant again visited MA at the Alfred Hospital. On that occasion he was able to obtain a statement. MA asserted that he had been assaulted by Collins, JGE and ‘Killer’. At the end of the assault each of his attackers had urinated on him. He said that he had known JGE since the time that they had been refugees in Kenya, and that he had met Collins and ‘Killer’ in Australia for the first time about a year previously. The trial judge noted that it is not in dispute that JGE is well-known to MA, but that ‘the level of acquaintanceship between [MA] and [Collins] … was not tested in any meaningful way at committal’, and MA’s level of familiarity with ‘Killer’ is ‘unclear’.
Once the narrative part of his statement had been completed, the informant showed MA a book of photographs. The book was referred to as ‘Footscray — Photobook — Dark Skinned and African Males ‘. It was 55 pages in length, and had six photographs on each page. The Victoria Police ‘logo’ was on the front cover. At the bottom of each page were the words ‘Footscray — Confidential’. Each photograph appeared within a border and as part of that border, and within the border at the bottom of each photograph was an eight or nine digit number. The judge ‘loosely described’ the photographs as ‘passport type photographs being close-up photographs of each person’s face, neck and a portion of their shoulders’.
The evidence revealed that the photobook was compiled by detectives from the Footscray Criminal Investigation Unit. It contained photographs of ‘persons of interest’ to those detectives. All of the photographs contained within the book were of men in police custody. At the relevant time, the photobook was used as an investigatory tool by detectives from Footscray, and was updated by those detectives from time to time on an ad hoc basis.
MA selected three photographs as depicting his attackers. He said of one of the photographs on page 3, photo number 611349823, ‘this male is known to me as Killer, I am certain of this’. As to a photo on page 24, number 268639390, he said, ‘this male is known to me as [JGE], I am certain of this’. And as to photographs on page 28, bearing number 493495666; on page 34 with number 580937466; and on page 41 with number 580937466; MA said, ‘[Collins] is in all these photographs, I am certain of this’. (There is no dispute that the three photographs did indeed depict Collins.)
The judge identified nine photographs that did not meet the general description of ‘passport type photographs being close-up photographs of each person’s face, neck and a portion of their shoulders’, because ‘the background of each of them is not plain’. The judge accurately noted that some of the photographs have, as part of the background, ‘portions of a structure that could be consistent with a cell’; and other photographs ‘have a door, what appears to be an architrave, brickwork and vertical blinds in the background’. One seemed to show a height scale.
Grounds of appeal
Pace’s two grounds of appeal claim that the trial judge ‘was wrong in finding that s 115(2) of the Evidence Act did not apply’, and ‘in finding no discretionary exclusions under s 135,[9] s 137 and s 138 of the Evidence Act did not (sic.) apply’. Collins’ six grounds are:
[9]See above n 6.
1.It was not reasonably open to the trial judge to find that the pictures were not suggestive of the persons being in police custody having regard to the following facts:
a. each photograph in the book is marked with a nine digit ‘Master Number Index’;
b. the words ‘Footscray – Confidential’ appear on the bottom of each page;
c. the book of photos bears the Victoria Police Logo on the front cover;
d. one image shows a height scale in the background;
e. a number of the images show people with cell doors in the background;
f. one of the images shows a man without a shirt;
g. at least one of the images shows a man who is injured or otherwise traumatised.
2.The trial judge erred in his finding that the cover of the photo book was irrelevant to his consideration of whether the pictures were suggestive of persons in police custody.
3.Further or in the alternative the decision of R v Batty … is incorrect and should not be followed by this court.
4.The trial judge erred in finding that the conduct of the investigators was not inconsistent with the minimum standards of acceptable police conduct and the photobook was therefore not inadmissible pursuant to s 138 in circumstances where:
a. the applicant’s photo appeared three times in the photo book;
b. the investigator moved to using photo identification before undertaking the required investigatory steps that were readily available to him.
5.The learned trial judge erred in finding that there was no unfair prejudice to the applicant in circumstances where the applicant’s photo appeared three times in two different images in the photo book.
6.The trial judge erred in not excluding the photobook as unfairly prejudicial having regard to the cumulative effect of grounds 1-5 above.
Submissions concerning s 115 of the Evidence Act 2008
Counsel for the applicants submitted to the trial judge that the photographs contained in the photobook were pictures kept for the use of police. They submitted that the numbers appearing at the foot of the photographs were indicative of photographs of persons in police custody. Counsel relied on the backgrounds in the nine photographs referred to, and submitted the background of one of the photographs showed a height scale, which was indicative of a person in police custody. It was also submitted that the words ‘Footscray — Confidential’ suggest that the photographs are pictures of persons in police custody. Finally, counsel relied upon the ‘uniformity’ of the photographs to make the same point.
In this Court, counsel for the applicant Collins addressed the Court on the nature of appellate review under s 297 of the CPA.[10] Counsel repeated the main submissions made to the trial judge, but also emphasised several other aspects. First, counsel submitted that ‘it seems highly probable’ that various of the males depicted in the photographs are drug and alcohol affected, and carry injuries, suggestive of police custody rather than some other form of custody. Secondly, the males depicted are attired in a variety of clothing, suggesting police custody rather than some alterative form of custody. Thirdly, there is a twofold ‘rogues gallery’, one upon the identifying witness and the other upon the jury. Fourthly, counsel submitted that the trial judge’s finding that the pictures do not ‘suggest’ that they are of persons in police custody simply was not open.
[10]Counsel cited Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124 and PNJ v DPP (2010) 27 VR 146.
The evidence is not inadmissible under s 115
Section 115 of the Act is, as has been observed, ‘concerned largely with what are colloquially known as “mug shots”’.[11] So far as relevant, it provides:
[11]R v Hennessey [2001] NSWCCA 36, [24] (O’Keefe J).
115 Exclusion of evidence of identification by pictures
(1) In this section, picture identification evidence means identification evidence relating to an identification made wholly or partly by the person who made the identification examining pictures kept for the use of police officers.
(2) Picture identification evidence adduced by the prosecutor is not admissible if the pictures examined suggest that they are pictures of persons in police custody.
…
(10)In this section —
(a) a reference to a picture includes a reference to a photograph; and
(b) a reference to making a picture includes a reference to taking a photograph.
There is no dispute that the impugned evidence is ‘picture identification evidence’.[12] It is evidence of an identification made by MA ‘examining pictures kept for the use of police officers’. The essential question is whether the relevant pictures ‘suggest that they are pictures of persons in police custody’.
[12]The Dictionary defines ‘identification evidence’
For picture identification evidence to be inadmissible under s 115(2), the ‘pictures examined’ must ‘suggest’ that they are ‘pictures of persons in custody’. In ordinary parlance, to ‘suggest’ is to insinuate, create or evoke an impression, or to call up or bring something to mind. Thus, in our view, there must be something in the nature of the photographs themselves which might create the impression in the mind that they are of persons in police custody.[13]
[13]See R v Batty (Unreported, 6 August 1997, NSW, CCA), McInerney J, Abadee and Bruce JJ agreeing. See also R v Atkinson (Unreported, 24 March 1997, ACTSC, Higgins J).
In our opinion, the trial judge was correct to observe that — save for the nine photographs referred to — all of the pictures are ‘consistent with the photographs taken for driving, boating and shooter’s licences’, or ‘identification photographs required by many employees who work in all manner of working environments’. Moreover, we agree with his Honour’s view that it is ‘mere speculation’ as to what the eight or nine digit numbers at the bottom of each photograph refer to, or what their function is. The words, ‘Footscray — Photobook — Dark Skinned and African Males’, and ‘Footscray — Confidential’, do nothing to add to any impression beyond what the photographs themselves suggest. The Victoria Police logo on the front of the booklet does not, in our opinion, detract from that view (and, in any event, any sensitivity about the jury viewing the logo might be eliminated by the simple expedient of exhibiting a copy of the photobook with the front page removed).
As to the nine photographs which, it is submitted, might independently suggest that they are of persons in police custody, we agree with the trial judge’s observations. There is nothing in the background of those photographs — the suggested height scale, presence of security mesh, the appearance of a secure door with substantial hinges, or the like — which suggests objectively that the males depicted in the photos are in police custody.
Further, even viewing the photographs with a cynical eye, we see nothing in them which demonstrates that ‘it seems highly probable’ that various of the males depicted in the photographs are drug and alcohol affected, and carry injuries, suggestive of police custody. Nor do we see any significance in the fact that the males depicted are attired in a variety of clothing.
As his Honour said of the nine photographs, ‘[n]either individually nor in combination can the pictures referred to … show that the pictures examined by [MA] suggest that they are pictures of persons in police custody’.
Rather than the trial judge’s ruling under s 115(2) being plainly wrong, in our view it was plainly correct. That makes it unnecessary to ponder the principles which guide the nature of appellate review under s 297 of the CPA.[14]
[14]See DPP v MD (2010) 29 VR 434; MA v R (2011) 31 VR 203; DPP v Marijancevic (2011) 33 VR 440; DPP v DJC (2012) 36 VR 33.
For these reasons, the first of Pace’s grounds of appeal, and grounds 1, 2 and 3 of Collins’ application, cannot be upheld.
Submissions concerning s 138 of the Evidence Act 2008
The applicants also sought to rely on s 138 of the Act.
Counsel for the applicant Pace submitted that there is a ‘proper procedure’ to be followed in relation to identification evidence that was not followed — and was in fact ‘sabotaged’ — by the investigating police officer. The informant’s evidence was that he had a name of a known suspect, JGE, and two other persons — Collins and ‘Killer’—as well as details of five others present at the scene. Despite this, he made no enquiries on databases elsewhere to ascertain the identities of the three suspects or attempts to re-interview witnesses prior to the use of the photobook. It was submitted that the informant did not produce any photoboards; and when he did show the complainant the photobook, he did not follow the procedure ‘normally used’ when photoboards are shown. Thus, he did not use an independent officer, standard preamble, interpreter, standard statement of identification by the identifier, videotape record, or notes of the verbatim response of the identifier. Counsel submitted that as a result of these failures, the informant has made it ‘impossible to cross-examine in relation to the procedure and details’, and, more importantly, made it impossible for an identification parade — the most reliable method of identification available — to be made because of the difficulties of ‘displacement’. In these ways, it was submitted, the safeguards built into the system which would protect the applicants’ rights have been bypassed and a method of identification used at the ‘investigative stage’ replaces that which would be used at the ‘evidentiary stage’. Use of such ‘improperly obtained’ evidence should, it was submitted, not be encouraged. Further, although the evidence is of importance to the prosecution, its probative value is limited due to the methods used, and the contraventions seem to be deliberate and might be extended for use in other matters. Cumulatively, so it was submitted, all of these matters fall short of the minimum standards required of police investigating criminal offences.
For the applicant Collins it was also submitted that the ‘central impropriety’ for the purposes of s 138 was the use of a book of photographs that included three separate images of the applicant. Additionally, the failure of the informant to obtain any physical description from the complainant of the man called ‘[Collins]’ before moving to picture identification; the use of old photographs of the applicant when a recent photograph was available; and the failure, after having received the name ‘[Collins]’, to conduct searches of that name on police databases with a view to narrowing the sphere of enquiry; were all irregularities. In combination, so it was submitted, these matters show an investigation that fell short of the minimum standards required of police investigating criminal offences. Further, counsel for Collins submitted that, in his ruling, the trial judge failed to deal with the use of the three photographs as going to the submission on impropriety, that matter only being referred to on the question of whether there has been unfair prejudice.
The evidence is not inadmissible under s 138
In our opinion, there was nothing improper in the manner in which the informant went about obtaining MA’s identification of the applicants.
Section 138(1) of the Act provides that evidence that was obtained improperly or in contravention of an Australian law, or in consequence of an impropriety or of a contravention of an Australian law, ‘is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained’.
The evidence showed that the informant had been provided with information that one of MA’s attackers had the nickname ‘Killer’ — and the police database showed that that was Pace’s nickname — but that there were 17 people in the police database sharing that sobriquet, an unknown number of whom were African males. Police had also been given the name Collins.[15] Thus, so far as we follow the applicants’ submissions, the Court should conclude that the police already had suspects, and that should have prompted them to arrange either for identification parades — an identification parade being the superior method of obtaining evidence of identification — or, at the least, identification from photoboards.
[15]See above, [11]–[13].
It is important to scrutinise the circumstances in which the police presented the photobook to MA. The complainant knew ‘Killer’ only by that nickname, and he had known Collins for a year or so. Once the narrative portion of the complainant’s statement had been made, the informant decided to use the photobook as an investigative tool to determine whether MA could identify his attackers. He did not present a small number of photographs, or present the photobook to MA in such a way as to suggest that photographs of the complainant’s assailants were to be found amongst the array of pictures presented to him. Significantly, there were 55 pages, containing 330 photographs. Notwithstanding the large number of photographs — an identification parade typically consists of 12 individuals, and a photoboard typically contains 12 photographs — MA was readily able to identify the applicants from the 330 photographs of males of African appearance.
At common law, when considering evidence of identification obtained through the use of photographs, a distinction was sometimes drawn between the ‘detection process’ and the ‘evidentiary process’.[16] There was held to be strong ground for excluding from a trial photo identification procured at a time when the police already knew the identity of the ‘wanted man’.[17] And identification evidence obtained in the evidentiary process, when the identifying witness had previously been shown a photograph, was subject to discretionary exclusion due to the operation of the ‘displacement effect’.
[16]Alexander v The Queen (1981) 145 CLR 395 (‘Alexander’), 408–9 (Stephen J).
[17]Ibid, 417.
It has also been observed that the safest and most satisfactory way of ensuring that a witness makes an accurate identification is by arranging for an identification parade.[18] But that proposition cannot be carried too far. Gibbs CJ observed in Alexander:[19]
[18]Ibid, 398 (Gibbs CJ). See also DPP v DJC (2012) 36 VR 33, 42 [48].
[19]Ibid, 400–1.
The value of holding an identification parade is not only that, if properly carried out, it provides the most reliable method of identification, but also that it is necessarily held in the presence of the accused, who is thereby enabled to observe, and later bring to light, any unfairness in the way in which the parade was conducted, or any weakness in the way in which the witness made the identification. However, as a matter of legal principle, it seems to me impossible to say that the admissibility of evidence of a prior act of identification depends on the fact that an identification parade was held. As a matter of law it would be equally admissible to prove that an identification was made by a witness who was shown a collection of photographs and selected one which he said was the photograph of the person concerned. There are, however, two grounds of objection to the proof of identification by means of police photographs. In the first place, the accused will of necessity be absent when the identification is made, and has no means of knowing whether there was any unfairness in the process or whether the witness was convincing in the way in which he made the identification. Secondly, the production in evidence at the trial of photographs coming from the possession of the police is very likely to suggest to the jury that the person photographed had a police record, probably for offences of the kind in question.
For these reasons, it is most undesirable that police officers who have arrested a person on a charge of having committed a crime should arrange for potential witnesses to identify that person except at a properly conducted identification parade. Similarly, speaking generally, an identification parade should, wherever possible, be held when it is desired that a witness should identify a person who is firmly suspected to be the offender. However, there is little support to be found in the authorities for the view that a conviction must necessarily be quashed if it is based on evidence that the accused was identified other than at an identification parade at a time when he had been charged or was definitely suspected, even though there was no valid reason why an identification parade could not have been arranged. …
And later he said:[20]
The authorities support the conclusion that I have reached, which is that, as a matter of law, evidence of an identification made out of court by the use of photographs produced by the police is admissible. However, a trial judge has a discretion to exclude any evidence if the strict rules of admissibility operate unfairly against the accused. It would be right to exercise that discretion in any case in which the judge was opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused. In a case such as the present it seems to me proper for a trial judge, in deciding how he should exercise his discretion, to take into consideration that it is the duty of police officers investigating crime to take every precaution reasonably available to guard against the miscarriages of justice that can occur, and have in fact occurred, because of honest but mistaken evidence of identification, and that for this reason ‘only in exceptional cases should photographs be used at a stage when some particular person is directly suspected by the police and they are able to arrange an identification parade or some other satisfactory alternative means whereby the witness can be asked directly to identify the suspected person’ …
[20]Ibid, 402–3 (emphasis added).
In the present case police did not have any firm suspects or any ‘wanted man’. The victim had spoken of an individual called ‘Killer’ as one of his attackers, and had referred to a man who went by the name ‘[Collins]’. In those circumstances, a practical method of discovering whether MA could identify any of his assailants was to show him an array of photographs. Indeed, it would have been impractical for police to search through the database to isolate the 17 individuals to whom the epithet ‘Killer’ attached, or to try to locate a person recorded as ‘[Collins]’, and then — as was submitted should have happened — to re-interview witnesses. There is nothing to suggest that the booklet of 330 photographs was presented to MA in a manner to suggest that pictures of his attackers necessarily were to be found in the book, or that police insinuated that any particular photographs might be of relevance.
We can see no impropriety (or unfairness) in the way the identification process unfolded. In particular, the contention that the process was unfair because police should have put together a photoboard is, in our view, unpersuasive. There was no firm suspect. To have put together photoboards they would first needed to have had some idea of which ‘Killer’ (or Killers) could realistically be considered a suspect, and whether there was a ‘[Collins]’ who might fit the bill. Even had the police realistically been capable of doing so, a photoboard would have consisted of photographs of far fewer individuals than were actually presented to MA.
For much the same reasons, in our view there is no merit in the suggestion that police should have held an identification parade (or parades). Absent a clear suspect or suspects, with whom were the police to populate the array? Indeed, to our minds, presenting MA with a large number of photographs was, in the circumstances, possibly fairer than presenting him with a dozen individuals in person.
Nor do we consider it improper that the investigator did not employ an independent officer, or any preamble, or interpreter; or failed to take a videotape record or ‘verbatim’ notes. The submission that, as a result of these supposed failures, the informant has made it ‘impossible to cross-examine in relation to the procedure and details’, is wholly without merit. Rather, one might have thought that if there was any substance in these failures, a moderately skilled cross-examiner could utilise the alleged failures to great forensic advantage in impinging on the accuracy and reliability of the identification made by MA.
The applicant Collins also complained that three photographs of him appeared in the photobook. Police explained that it was not appreciated that there were three photographs of the same individual. There was nothing in the evidence to indicate that it was insinuated to MA that there were three photographs of the one individual in the book (that is, two different photos, one of those being repeated); or that it was in any way suggested to MA that he should select any particular photograph; or that the presence of three photos caused MA to be influenced — consciously or unconsciously — to select Collins’ photograph. The evidence suggests that the complainant selected the photographs without any hesitation, and provided names for the individuals whose photos he selected.
Moreover, we cannot see that the failure of the informant to obtain any physical description from the complainant of the man called ‘[Collins]’ before moving to picture identification; or that the book contained ‘old photographs’ of the applicant Collins; or that, having received the name ‘[Collins]’, the informant failed to conduct searches of that name on police databases with a view to narrowing the sphere of enquiry; were in any way improper.
The question for the trial judge was whether the identification evidence was obtained improperly (or in contravention of an Australian law), or in consequence of an impropriety (or of a contravention of an Australian law). We can see nothing improper in the methods used by the informant, so that the judge was correct to find that the evidence was not obtained improperly or as a result of an impropriety.[21]
[21]No contravention of Australian law was alleged.
In any event, even if, contrary to our view, it was considered that there had been some impropriety, nonetheless the desirability of admitting the evidence would far outweigh any suggested undesirability of admitting the evidence ‘obtained in the way in which the evidence was obtained’. Any impropriety — were there to be considered any — was not deliberate. The prosecution case would be emasculated by exclusion of the evidence. And, in any event, for the reasons already discussed, we regard the process adopted as having been fair.
Ground 2 of Pace’s application, and ground 4 of Collins’ application, cannot be sustained.
Discretionary exclusion under s 137
Counsel for the applicant Collins in this Court also sought to rely of s 137 of the Act.[22] It was submitted that the picture identification is ‘very likely to suggest to the jury that the persons photographed have a police record, probably for offences of the kind in question’.[23] The unfair prejudice to the applicant by virtue of his image appearing in the photobook three times is, it was submitted, incapable of being remedied by direction under s 115(7). That prejudice is ‘amplified’ by the repetition of one of the photographs, and the allocation of two separate numbers, appearing at the bottom of each photograph. It was submitted that the probative value of the evidence is reduced by virtue of the images appearing in the book of photographs three times. In particular, so it was argued, the second and third identifications ‘add nothing’. The probative value of the evidence is outweighed by the danger of unfair prejudice, in that the jury will give the evidence undue weight, and misuse the evidence by reasoning that the applicant is someone who has come into contact with the police (on multiple occasions). Ultimately, it was submitted that he picture identification evidence should be excluded in its entirety; or, alternatively, the prosecution should not be allowed to rely on ‘the second and third identification’.
[22]Counsel for Pace did not rely on s 137 in this Court.
[23]Alexander, 400 (Gibbs CJ).
There is nothing in these submissions. Assuming for the sake of argument, however, that there is some risk of unfair prejudice to the applicant arising from the matters relied upon, in our view it may be addressed by adequate directions from the trial judge under s 115(7) (should such a direction be requested).
It is clear, in our view, that the probative value of the evidence outweighs any risk of unfair prejudice.
Conclusion
For these reasons, in each case leave to appeal must be refused.
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