Director of Public Prosecutions v Folau (Ruling No 4)
[2022] VSC 49
•15 February 2022
| IN THE SUPREME COURT OF VICTORIA | Unrestricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0311
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| TORRIS FOLAU | Accused |
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JUDGE: | LASRY J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 15 December 2021 |
DATE OF RULING: | 15 February 2022 |
CASE MAY BE CITED AS: | DPP v Folau (Ruling No 4) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 49 |
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CRIMINAL LAW — Charges of murder, intentionally causing serious injury and home invasion — Application for exclusion of identification evidence — Whether identification evidence ought to be excluded pursuant to ss 55 and 137 of the Evidence Act 2008 (Vic) — Relevance of evidence — Whether probative value of evidence outweighed by danger of unfair prejudice — Evidence relevant — Probative value of evidence not outweighed by danger of unfair prejudice — Identified shortcomings with the evidence a question for properly instructed jury — Application refused — Cases cited: IMM v R (2016) 257 CLR 300; Peterson (a pseudonym) v The Queen [2014] VSCA 111.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms Melissa Mahady with Ms Kathryn Hamill | Office of Public Prosecutions |
| For the Accused | Mr John Desmond | Matthew White & Associates |
HIS HONOUR:
Torris Folau (‘the accused’) is charged with one charge of home invasion, one charge of causing serious injury intentionally and one charge of murder, all of which allegedly occurred on the 16th of May 2020.
The allegations against the accused are set out in paragraphs [1]-[5] of the summary of prosecution opening filed pursuant to section 182 of the Criminal Procedure Act 2009 (Vic), which are reproduced in the first pre-trial ruling in relation to this matter and need not be repeated here.[1]
[1]DPP v Folau (Ruling No 1) [2021] VSC 801R, [4].
There are several issues to be resolved in advance of the trial before the jury. This is the fourth pre-trial ruling in relation to this matter. This ruling concerns the admissibility of the identification evidence of witness Betts which is set out in the following terms in the Summary of Prosecution Opening:
[63]The day after the offending, Murray was with Betts and Ward.
[64]Murray had heard discussion about the armed robbery of Ghattas, and the name “Christian” came up. Murray thought this would be a reference to Movondo, whom she knew from when she was in high school. She thought the home invasion might be connected to the armed robbery. She found Movondo’s profile on Instagram. His tag was chris.mavondo but his bio name was “Christian Dior”. She then searched Facebook for the name “Christian Dior” and found Movondo’s profile. She searched his friend list for “TK” and found a profile of “TK Chapo”. She looked at some of the photos of TK Chapo’s profile but wasn’t sure whether he was involved. She directed Betts’ attention to the profile. Betts looked at the profile and said, “That’s him, 100% that’s him”.
[65]Betts will say one of the three people depicted in the ‘cover’ photo of the TK Chapo profile (the male wearing a baseball cap and blue t-shirt) was the person at Nolan Drive the night before, who she had heard identify himself as “Tiki”. She accessed other photographs on the TK Chapo page and identified “Tiki” in them. She took a number of screenshots of the photographs, and provided them to police.
[66]Investigation by police demonstrated the TK Chapo profile bore a website address of Tanuvasa will say he has known the accused for a number of years, and also communicated with him on Facebook, where the accused had an account in the name, “TK Chapo”.
That identification having occurred, there was no police supervised process such as an identification parade or police-prepared photograph folder.
On behalf of the accused, Mr Desmond of counsel seeks the exclusion of this identification evidence on two related grounds. He submitted (though not in the order in which the matter was argued) that the identification is so weak and unconvicting as to have little or no probative value and therefore should be excluded pursuant to the operation of s 55 of the Evidence Act which provides:
(1)The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
Effectively the argument is that the evidence is so weak and unconvincing that it could not “…rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”.[2]
[2]IMM v R (2016) 257 CLR 300, [39] (French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ).
If the evidence is relevant pursuant to s 55, then it is admissible unless it is caught by other exclusionary rules. As I followed it, Mr Desmond submitted that if the evidence is relevant then it should nonetheless be excluded pursuant to s 137 of the Evidence Act 2008 (Vic). That section provides:
In a criminal proceeding, the Court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to accused.
In his written submissions Mr Desmond argued that the identification “…from the Facebook is…not merely weak, but ‘simply unconvincing’”. He further argued that “given the circumstances of the Facebook identification and the discussions between Murray and Betts surrounding the person known as Teekay or Tikka Chapo, [the identification] is virtually of no probative value whatever”, and this is certainly so in circumstances where a subsequent photo board identification has not occurred. Mr Desmond argued any probative value the identification evidence might have is outweighed by the risk of unfair prejudice, if only by the presence of the name ‘Tk Chapo’ in heavy typeface in the Facebook pictures.
Mr Desmond drew attention to what he submitted were the following problematic features of the identification:
(a) Murray’s suggestion to Betts that she had a picture of the offender and, upon being shown the picture, Betts saying ‘yes that’s him’;
(b) All but one of the photos have the name TK Chapo written on the photograph or accompanying the photograph;
(c) Neither Murray nor Betts notified police of the purported identification in a timely and spontaneous manner.
Mr Desmond submitted that in such circumstances, there was a real risk that Betts selected the photo of the accused because of a ‘displacement effect’ or ‘unconscious transference’, having been influenced by what Murray told her and by the fact that the Facebook photos were accompanied by the name ‘TK Chapo’. Mr Desmond submitted that the deficiencies in Betts’ identification evidence cannot be overcome by other circumstantial evidence, which is absent in this case.
In the course of oral submissions, Mr Desmond highlighted that in Betts’ committal evidence she accepted that Murray’s suggestion that she look at the Facebook images was capable of influencing her. Mr Desmond conceded that Betts did not accept the proposition that Murray’s suggestion did in fact influence her. Mr Desmond submitted in oral submissions that the probative value of the identification evidence is further undermined by the fact that the initial observation of the offender was made in circumstances of incredible stress and anxiety and the description of the offender given by witness Betts in police statements is limited.
As I understand it, Mr Desmond’s position regarding the s 55 argument was that this evidence weak and unconvincing and relied on the following passage of the judgement of the majority in IMM v R[3]:
[50]At a level of logic it is difficult to see how a trial judge could approach the question as to what the probative value of the evidence could be in any other way, for the reasons alluded to by Gaudron J in Adam v The Queen. It must also be understood that the basis upon which a trial judge proceeds, that the jury will accept the evidence taken at its highest, does not distort a finding as to the real probative value of the evidence. The circumstances surrounding the evidence may indicate that its highest level is not very high at all. The example given by J D Heydon QC was of an identification made very briefly in foggy conditions and in bad light by a witness who did not know the person identified. As he points out, on one approach it is possible to say that taken at its highest it is as high as any other identification, and then look for particular weaknesses in the evidence (which would include reliability). On another approach, it is an identification, but a weak one because it is simply unconvincing. The former is the approach undertaken by the Victorian Court of Appeal; the latter by the New South Wales Court of Criminal Appeal. The point presently to be made is that it is the latter approach which the statute requires. This is the assessment undertaken by the trial judge of the probative value of the evidence (emphasis added).
[3](2016) 257 CLR 300, [50] (French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ).
In this case, the witness Betts gave evidence at the committal and was also cross examined during the process.
In her first statement she said, among other things, in relation to the man she identified:
…the male was standing out the front for a while, the male was Samoan appearance, 20’s, tall, big build and wearing black cap, white t-shirt and shorts which I do not recall in colour. He was standing outside hovering for 20 minutes. I was keeping an eye out on him.
She described the incident as follows:
I went into shock, I was so scared and holding onto Paige. It happened so quickly and Tiki kicked the bedroom door which broke the lock. I could see another male behind him. he was Samoan, in his 20’s and had a black mask covering the bottom of his face. He was a bit shorter and fatter than Tiki. I do not recall what he was wearing. Tiki had a knife in is (sic) right hand. It was a leathal (sic) weapon or knife about fifteen centirmetres (sic). Tiki was waving the knife around. He did not say anything I think they were shocked to see two females. Tiki took my car keys from the bed and both males left.
In her third statement, the witness said:
Today I've been asked to try to better describe the two men who came in to the house on the night of the 16th of May, 2020 when Hash got stabbed…The first male who I saw from out the window when he was at the front door and then when he came inside looked like a Kiwi. I used the word Samoan in my first statement because Alex said 'a Samoan bloke' was outside the house when he came in after arriving in the Uber. He had Kiwi eyes but fair skin, not olive, it was near white. He had some hair, like a mullet that stuck out from his cap at the back. I'm not sure if it was a mullet but you could see it was longer and had curled. His hair was mousey brown. I think he might have had some bum fluff on his face. I thought he said his name was 'Tika' or 'Taker'. I saw the second male over the first one's shoulder when they came in and then when they were running to the car. I can't really describe him better.
Later she said:
On the morning of Sunday the 17th of May, 2020 I was at Brett WARD's house and Paige was telling me she'd gone through Christian's Facebook friends. We were all sure that he'd set Nadim up and then he'd sent them to the house on Saturday night. Paige told me to look at a Facebook profile named 'Tk Cha po'. I'm not sure how she got there but maybe it was because I said the guy's name was 'Tika or Taker' when he was outside. I looked up the 'Tk Chapo' profile on Facebook on my phone. As soon as I opened the profile I saw him on the cover photo. I straight away thought, "that's him". I'm l 00% sure. He is in the right of the cover photo wearing a blue t-shirt and a baseball cap. I can't see many photos on his profile because we aren't friends but I looked through the rest of his photos on his profile and I'm sure it's him. I have taken four screenshots of the 'Tk Chapo' Facebook profile I'm talking about and the photos of him and have provided them to police.
Witness Betts was cross examined as to her identification of the photograph. She was questioned about the effect that Murray had on her identification:
(Questioner reading) 'Paige told me to look at a Facebook profile named TK Chapo'? --- M'mm.
Implicitly she's telling you this - perhaps directly she said - you tell us. I reckon this is the bloke. This could be the bloke? --- M'mm.
Could I have yes or no's instead of, with respect, grunts? --- Yes. Yes.
Thank you? --- That's all right.
What I suggest to you and I'd ask you as a mature woman to be a bit objective about this is? --- M'mm.
That process of Paige suggesting to you this could be the bloke and then she hands you or causes you to look at a photo of the bloke or a bloke, potentially contaminates your belief, that's the bloke - - -
Later:
What I'm asking you, Ms Betts, is the fact that your friend says to you, look, I think this bloke could be - this TK bloke could be this person in the Facebook? --- Yeah.
Has influenced, ultimately, your then decision, yeah, that's him, when you pick him out from the Facebook? --- Well, I recognised him, yes.
Yes. But - - -?---(Indistinct words) influence. You say this, look, it's capable of influencing me because my girlfriend is telling me have a look at this bloke. I think it could be him? --- Yeah, she thought - yeah.
That's (indistinct words). But given she's expressed that thought to you, you say it's capable of influencing me that, yes, it was him? --- Well, she didn't influence me that was him.
See, I suggest to you that's the very thing that has happened here. You've been influenced heavily by your friend to say have a look at this bloke. He's connected with Christian. We think Christian set him up and this guy's calling himself TK which is the same or similar to the name you already had? --- Yeah.
What do you say to that? --- I wasn't influenced at all, no.
So, this was not a brief identification made in very bad light. The witness had had a significant opportunity to observe the male she identified and, as Ms Mahady on behalf of the Director submitted in response, the Facebook identification is highly probative given the witness confidently identified the accused, maintained the identification under cross-examination at committal and gave evidence that the identification was not influenced by Murray.
Ms Mahady submitted that the identification evidence was relevant and highly probative. The decision by police not to show Betts a photo board was unsurprising given she advised investigators she had identified the accused on Facebook, and any police-conducted identification process after the Facebook identification “could have been marred by the displacement effect.” Ms Mahady submitted that the fact the photos had the name ‘Tk Chapo’ on them “is of little concern given that [Betts] gives evidence of the man at the door telling her his name is ‘tiki’, ‘tika’ or ‘taker’”.
Ms Mahady drew a comparison between the present matter and the Facebook identification made in Peterson (a pseydonym) v The Queen.[4] The victim in that case was given the name of the accused by another person, who suggested the accused may have been involved in the assault. The victim then identified the accused as the offender after searching for him on Facebook. In considering whether to exclude the evidence, the court said the following:[5]
[56]There is, in our view, no real prospect that the probative value of the evidence will be outweighed by any danger of unfair prejudice. The reliability of CB’s identification from the Facebook page is pre-eminently a jury question. Properly instructed, we have no doubt that the jury will be capable of making an assessment of the credibility and reliability of the victim’s identification, after adequately scrutinising the suggested shortcomings in the evidence (including the suggested lack of safeguards identified in Strauss). With the benefit of appropriate judicial direction, it is unlikely that the jury will give the evidence undue weight.
[4][2014] VSCA 111 (Priest and Beach JJA).
[5][2014] VSCA 111, [56] (Priest and Beach JJA).
Ms Mahady submitted that the significance of Betts’ Facebook identification in the present case is similarly a classic jury question. It was therefore submitted that the evidence ought to be ruled admissible and the jury can then assess for themselves the reliability of the identification and the credibility of Betts.
Mr Desmond distinguished the facts in the present case from those in Peterson. He submitted that while in Peterson the victim was given a name and then searched Facebook independently, in this case Betts was directly presented with the Facebook photo by Murray. Mr Desmond drew attention to Betts’ committal evidence in which she agreed that in being so presented with the photo, Murray was implicitly telling her that the person in the photograph could be the offender. However, Betts made it clear that whilst such comments were capable of influencing her, they didn’t and it is at least to be inferred that that was her state of mind because she was confident in the conclusion she had come to.
Conclusion
I have come to the conclusion that the identification evidence to be given by Betts is relevant and could have probative value. She had a significant opportunity to see the man she identified and when she saw the Facebook photograph she was confident that the person depicted was the man she saw. Given identity is in issue in this case, Betts’ evidence could rationally affect the assessment of the probability of a fact in issue in the proceeding.
In my view the circumstances are very similar to those that arose in Peterson so that the observations made by the Court of Appeal are apposite in this case. The shortcomings in the evidence identified by Mr Desmond are matters going to the credibility and reliability of the evidence, which ought to be assessed by a properly instructed jury.
In Petersen, the Court of Appeal said:[6]
[51]When a trial judge is asked to exclude evidence pursuant to s 137, in assessing probative value he or she must evaluate the weight that the jury rationally could attach to the impugned evidence. In so doing the judge is not required to assume that its reliability will be accepted. Resolution of the capacity of the evidence rationally to affect the determination of a fact in issue requires the judge to make some assessment of the weight that the jury could, acting reasonably, give to the evidence. If it be contended that the quality — or the frailties — of the evidence would result in the jury attaching more weight to the evidence than it deserves, the trial judge is required to assess the extent of the risk. But the trial judge is not required to gauge the weight that the jury will or would give to the evidence. Instead, the judge is obliged to assess what probative value the jury could give to the evidence, and balance against it the risk that the jury will give it disproportionate weight.
[6][2014], VSCA 111, [51] (Priest and Beach JJA).
In my view, a jury acting reasonably could regard this evidence as being probative of the issue of identification and give significant weight to it. I am of the view that appropriate judicial direction will adequately guard against the risk of the jury giving the evidence undue weight.
Having concluded that the evidence is relevant and that its probative value is not outweighed by the danger of unfair prejudice to the accused, in the circumstances of this case there is no reason to exclude it pursuant to ss 55 or 137 of the Evidence Act 2008 (Vic). The application is therefore refused.
Whilst the identification evidence is admissible, it necessarily follows from my third ruling in this matter that certain aspects of the prosecution narrative as to how this identification came about are not admissible pursuant to s 55 of the Evidence Act 2008 (Vic). The prosecution may not lead evidence of or otherwise address the jury regarding the alleged armed robbery that occurred on 15 May 2021 and the early hours of 16 May 2021 when leading the identification evidence.
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