Director of Public Prosecutions v Byrne No. 2
[2016] VSC 345
•8 JUNE 2016 (Reasons 24 June 2016)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CI 2015 0108
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DWAYNE MICHAEL BYRNE |
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JUDGE: | JOHN DIXON J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 8 JUNE 2016 |
DATE OF RULING: | 8 JUNE 2016 (Reasons 24 June 2016) |
CASE MAY BE CITED AS: | DPP v BYRNE No. 2 |
MEDIUM NEUTRAL CITATION: | [2016] VSC 345 |
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EVIDENCE — Admissibility – Picture identification evidence – Historical picture used in photoboard – Whether accused in police custody – Whether no significant change in the accused’s appearance – Evidence Act 2008 (Vic) ss 115, Corrections Act 1986 (Vic) ss 6A, 6D.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J McWilliams | Office of Public Prosecutions |
| For the Defendant | Mr S Johns | Stary, Norton, Halphen Pty Ltd |
HIS HONOUR:
On 8 June 2016, I ordered that the picture identification evidence that the prosecution intends to adduce in respect of the accused by reference to the photo board compiled by Senior Constable Thomson on 13 February 2015, Exhibit B5, is not admissible pursuant to s 115(3) of the Evidence Act2008 for reasons to be later published.
These are my reasons.
The accused is charged with two offences, in the alternative, attempted murder and intentionally causing serious injury in relation to a stabbing that occurred on Brooks Jetty at St Kilda. He has pleaded not guilty. The critical issue in the proceeding is the identity of the assailant. When the attack occurred the victim, Steen Locke, was in the company of another, Rochelle Jerard. The accused was arrested by police four days later and it is common ground that he declined to participate in an identification parade.
The investigating police obtained identification evidence by inviting Steen Locke and Rochelle Jerard to examine pictures kept for the use of police officers, what is commonly referred to as identification from a picture board. The accused objected to the admission of this evidence. This evidence was picture identification evidence as defined by s 115(1) of the Evidence Act 2008 and its admissibility at trial was governed by the terms of that section. Alternatively, the accused submitted that the evidence was excluded by s 137 of the Act.
To understand the accused’s submission, it is necessary to recite the chronology of relevant events in the investigation. These matters were not in issue. The victim was assaulted at about 23:30 on 7 February 2015. Police arrested the accused at approximately 23:37 on 11 February 2015 and he was interviewed during the morning of 12 February 2015, during which time he was photographed. Later that day, 12 February 2015, the accused attended a filing hearing at the Melbourne Magistrates Court and was remanded into custody. He then ceased to be in the custody of the informant, or at least of the officer in charge of the St Kilda Police Station and he was admitted into the Melbourne Custody Centre at 15:36 on 12 February 2015. The accused remained at the Melbourne Custody Centre until he was received at the Melbourne Assessment Prison at 11:38 on 16 February 2015.
A Senior Constable Thomson prepared the photo boards on 13 February 2015 and Mr Locke examined the photo board later that day at about 15:30. It is common ground that the photograph of the accused that was used on the photo board was taken in about April 2014 and was not the photo taken by police the day before.
Senior Constable Thomson stated that she produced two photo boards, including one for Dwayne Byrne that depicted him in position 4. Although there was a photo taken shortly after his arrest, that photograph was not used and instead she used a photograph in police possession from April 2014. This was because Senior Constable Thomson considered the most recent photograph to be out of focus. Mr Byrne’s eyes were averted and a cut lip and an abrasion could be seen on careful inspection. In consultation with the informant Detective Brain, Senior Constable Thomson decided it would be unfair to use that photo and did not ask Detective Brain to take another photo. She gave no reason why she did not ask for further photographs to be taken. She described the April 2014 photograph as in focus, not an unfair portrayal, and easier to match with 11 other similar images. In re-examination, Senior Constable Thomson said she would still have had concerns about how the accused would present in any further photographs because of the apparent cut lip and the abrasion.
The most recent photograph was tendered and could be compared with a still photograph extracted from the CCTV footage retrieved from a taxi in which the accused man had travelled on 7 February 2015. The photo bore the time stamp 23:41. Senior Constable Thomson’s concern that the photo board that she prepared be fair to the accused perhaps anticipated a challenge to the admissibility on the photo identification evidence under s 137 of the Evidence Act based on the apparent injuries detectable in the most recent photograph, but the issues that arise under s 115 are different.
Section 115 is part of a statutory process[1] to deal with the dangers of unfairness in identification evidence. Subsections 115 (3) and (4) are in the following terms.
[1]Part 3.9 of the Evidence Act 2008 and Part 4 Div. 4 of the Jury Directions Act 2015.
(3)Subject to subsection (4), picture identification evidence adduced by the prosecutor is not admissible if—
(a)when the pictures were examined, the accused was in the custody of a police officer of the police force investigating the commission of the offence with which the accused has been charged; and
(b)the picture of the accused that was examined was made before the accused was taken into that police custody.
(4) Subsection (3) does not apply if—
(a)the appearance of the accused had changed significantly between the time when the offence was committed and the time when the accused was taken into that custody; or
(b)it was not reasonably practicable to make a picture of the accused after the accused was taken into that custody.
The accused submitted that he was in police custody when the pictures were examined and the picture identification evidence was not admissible because, given that the accused had refused to take part in an identification parade, the picture of the accused that was examined by the witness was made before the accused was taken into that police custody.
Further ss (4) did not exclude the operation of ss (3) because the appearance of the accused had not changed significantly between the time when the offence was committed and the time when the accused was taken into that custody. The fact that the police had taken a poor unfocussed photograph demonstrated that it was reasonably practicable to make a picture of the accused after the accused was taken into that custody.
The prosecution contended that the purpose of Part 3.9 of the Evidence Act is to ensure fairness in the investigative stage and to provide the steps necessary for the production of admissible identification evidence.
The Corrections Act 1986 deals with prisoner management, prisoner welfare, and deems custody of a person to be either with the corrections system or the police to allow for clear demarcation to establish responsibility for such persons. The Corrections Act does not engage with the concept of police custody in the sense that that phrase has always been known to the criminal law. The prosecution submitted that the statutory purpose of s 115 is achieved if the relevant police custody at the time ends at the time when a judicial officer orders the suspect’s remand into custody. Investigating police no longer exercise power or control over the suspect when he or she ceases to be in their custody, which is more consistent with the underlying policy objective. The arrangements in respect of the Melbourne Custody Centre are administrative, perhaps flowing from inadequate systemic resourcing, and are part of the administrative arrangements more closely aligned with the functions of the Office of Corrections than with the functions of investigating police.
The prosecutor submitted that the vice in the accused’s submission is that it applies the concept of custody from the Corrections Act into the concept of custody that engages s 115 of the Evidence Act.
I was referred to Pham v The Queen[2] where a similar question arose in a different context. At trial, defence counsel had innocently, but mistakenly been informed by the prosecutor that the applicant was not offered an identification parade and was quickly removed from police custody into the custody of Corrections so that, by the time of a photo board identification the informant did not think it possible to arrange for an identification parade. Defence counsel relied on this information and did not contest the admissibility of the picture identification evidence under s 115(5).
[2][2015] VSCA 263.
On the appeal, the Crown accepted that what in fact occurred was that after the applicant was arrested and interviewed, he was remanded in police custody at a filing hearing in the Magistrates’ Court at Melbourne. He was not transferred to the Melbourne Assessment Prison for some days and remained in the custody of Victoria Police. At the time of the photo board identification, he was in the custody of the Chief Commissioner of Police.
The Crown conceded appeal ground 1(a) - that a substantial miscarriage of justice was occasioned by the admission into evidence of the photo board identification of the applicant in circumstances where before pre-trial argument, defence counsel was given mistaken or false information about why an identification parade was not offered to the applicant or conducted. The Court of Appeal considered that the concession was properly made and the circumstances amounted to an irregularity in the trial pursuant to s 276(1)(b) of the Criminal Procedure Act2009.
For this reason, the decision offers little assistance on the question I must determine. The Court observed:[3]
We emphasise that the application, and appeal, succeeds on the basis of ground 1(a). In reaching that conclusion, we do not decide whether or not the photo board evidence may be admissible on the re-trial of the charge against the applicant. That question is a matter for the trial judge to determine after hearing argument, and, if necessary, evidence on a voir dire, in relation to it.
[3][2015] VSCA 263, [17]
The Australian Law Reform Commission[4] relevantly observed in respect of s 115(3) that the provision seeks to ensure that the police will not use old photographs they may hold of the suspect, thus reducing the impression on the witness or the jury that the suspect has previously been of interest to the police. It does not however, prohibit the use of old police photographs for the purposes of locating a suspect at the investigation or detection stage before a suspect has been taken into custody, provided the photographs do not depict the suspect overtly in police custody. The Commission acknowledged that the common law recognised the difference between using photographs in the process of investigation and the use of photographs in evidence, and it stated that:
The limitation of s 115(3) to persons ‘in police custody’ aims to ensure that the section will not diminish the capacity of the police to continue to use old photographs in the course of the investigatory process.
[4]Australian Law Reform Commission, Uniform Evidence Law Report, Report No. 102 (2005), 442-448.
It has been recognised that the police may be able to avoid the operation of the safeguard after they have identified and located a suspect, either by defining a person as consenting to picture board identification or by releasing an arrested person on bail. The latter circumstance was considered in R v McKellar[5] and the NSW Court of Criminal Appeal held that the safeguards of s 115(3) did not apply. Howie J (speaking for the court) said:[6]
Whether the words “in the custody of a police officer” should be given any other than the normal meaning which would be attributed to them, does not need to be determined on this appeal because of the particular factual situation in the present case. However, I would note in passing that the term “police custody” appears in subsection 115(2) in a context where the word “custody” must mean “under physical restraint”. Further, it cannot be irrelevant that throughout the Evidence Act and in the Dictionary to the Act, words and terms used in the provisions of the Act are defined where any but the normal meaning of a word or term was intended by the drafter or there may be a doubt arising about the meaning of a word or term used in the Act.
[5][2000] NSWCCA 523.
[6]Ibid, [37].
In Regina v Darwiche & Ors,[7] Bell J, on an application to exclude picture identification evidence, considered both McKellar and the ALRC Report. In that case, the accused was in the custody of the governor of the correctional centre to which he had been committed. Her Honour noted:[8]
The Commission favoured a test of custody as distinct from one directed to the state of mind of the investigating police. This would not have precluded a wider definition of custody than that which was adopted. The plain words of s 115(5) do not seem to me to admit of the construction for which [Counsel for the accused] contended. On 1 April 2004 the accused was in custody but he was not in the custody of a police officer of the Police Force investigating the commission of the offence with which he has been charged.
[7](2006) 166 A Crim R 28.
[8]Ibid, 36 [33].
I am satisfied that for the purposes of s 115 the accused was in police custody at 15:30 on 13 February 2015 when Mr Locke examined the photo board that Senior Constable Thomson had prepared.
The fact of his custody is not contentious, but the analysis of in whose custody the accused was is answered by the Corrections Act. At 15:30 on 13 February 2015, the accused was being held in the Melbourne Custody Centre. It was not in issue that the Melbourne Custody Centre was a police gaol, managed and operated by G4S on behalf of the Chief Commissioner of Police. It is not a prison. Section 11 of the Corrections Act provides that the Governor in Council may by Order appoint any premises or place that is not a prison to be a police gaol. A copy of an Order in Council dated 21 May 2008 made under s 11 was in evidence.
The Sentence Management Manual published by Corrections Victoria Sentence Management Branch makes clear that the Melbourne Assessment Prison is the reception point for all male prisoners entering the system. It also states –
An unsentenced … person …who is detained in a police cell is in the custody of the Chief Commissioner of Police. This person ceases to be in police custody when his or her transfer from the police cell to a prison cell is completed. A transfer is complete when the person is received at the prison and the documents authorising the person’s detention in the prison are produced to the proper officer in the prison.
When the accused, on 12 February 2015, attended a filing hearing at the Melbourne Magistrates Court, he was remanded into custody. Section 6D of the Corrections Act provides that –
(1)A person is deemed to enter the legal custody of the Chief Commissioner of Police for the purposes of this Act when—
(a) an order of imprisonment is made in relation to the person, or an order is made by a court requiring the person to be held in police custody, or there is other lawful authority to detain the person in a police gaol; and
(b)either of the following events occurs—
(i)a police officer or a person acting under lawful authority on behalf of the Chief Commissioner takes physical custody of the person; or
(ii)a person at a police gaol acting under lawful authority on behalf of the Chief Commissioner receives the person into the police gaol.
An order of imprisonment includes a remand order as was made by the magistrate on the filing hearing on 12 February 2015.[9]
[9]Corrections Act 1986 (Vic), s 6.
Section 6E provides that a person who is deemed by the Act to be in the legal custody of the Chief Commissioner of Police ceases to be in the legal custody of the Chief Commissioner when the legal custody of the person is lawfully transferred to the Secretary the Department of Justice and Regulation or another person. Section 6A(1) of the Corrections Act provides that a person is deemed to enter the legal custody of the Secretary when a person at a prison acting under lawful authority on behalf of the Secretary receives the person into the prison. Thus, in this case the applicant was in the custody of the Chief Commissioner of Police from 12 February 2015 until his reception at the Melbourne Assessment Prison at 11:38 on 16 February 2015.
In particular, during the time on 13 February 2015 when Mr Locke examined the photo board, the accused was in the legal custody of the Chief Commissioner of Police.
Section 115 of the Evidence Act directs attention to whether the accused was in the custody of a police officer of the police force investigating the commission of the offence. The proper construction of this provision is clear. There is no ambiguity. The expression ‘investigating the commission of the offence’ qualifies the police force and not the police officer, which is made clear by the use of the indefinite and definite articles in the subsection. The limitation on the use of an old photograph, while confined to when the suspect is in the custody of the police force, is not confined to the period when the suspect is in the custody of the particular investigating police officers. The language of the section contemplates that the accused may be in the custody of police other than the investigating police and if so, a photograph taken before the accused was taken into that police custody cannot be used. The Chief Commissioner is plainly an officer of Victoria Police and Victoria Police is the police force investigating the commission of the offence. The first limb of ss 115(3) is satisfied and I conclude that when the pictures were examined, the accused was in the custody of a police officer of the police force investigating the commission of the offence with which the accused has been charged.
As it was common ground that the picture of the accused that was examined was made before the accused was taken into that police custody, that picture having been taken in April 2014, the picture identification evidence is not admissible, unless ss 115(3) does not apply.
I turn then to ss 115(4). The appearance of the accused had not changed significantly between the time when the offence was committed and the time when the accused was taken into that custody. So much was evident on examination of the three sets photographs of the accused. First, there were still photographs extracted from the CCTV footage downloaded from the security camera in the taxi that was taken on 7 February 2105. Secondly, there was the photograph taken on 12 February 2015 by the informant that was rejected by Senior Constable Thomson as unfocussed and inappropriate and thirdly there was a set of photographs taken by a forensic medical officer who examined the accused on 12 February 2015. As I have already noted, the fact that the police had taken a poor unfocussed photograph demonstrated that it was reasonably practicable to make a picture of the accused after the accused was taken into the custody of an officer of the police force that was investigating the offence.
In the circumstances, ss (4) does not exempt the application of ss (3) and pursuant to s 115 the picture identification evidence that the prosecution proposes to lead is inadmissible. It is unnecessary to consider the alternative submission.
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