Director of Public Prosecutions v Low (a pseudonym) (Ruling No. 4)
[2024] VCC 707
•2 May 2024 22 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES LOW (a pseudonym)[1] |
[1] A pseudonym used to protect the identity of the accused who is awaiting trial.
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JUDGE: | His Honour Judge Trapnell | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 November and 18 December 2023, 30 January, 31 January, 1 February and 22 March 2024 | |
DATE OF RULING: DATE OF REASONS: | 2 May 2024 22 May 2024 | |
CASE MAY BE CITED AS: | DPP v Low (a pseudonym) (Ruling No. 4) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 707 | |
RULING NO. 4
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Subject:Criminal law – Evidence
Catchwords: Pre-trial ruling – Admissibility of picture identification evidence – Sexual assault of a child under the age of 16 – Sexual penetration of a child under the age of 16 – Trafficking a drug of dependence to a child – False imprisonment – Two complainants – Picture identification evidence – Defence application to exclude evidence under s 137 of the Evidence Act 2008 – Independent positive identifications of the accused from different photo boards by each complainant – Accused partially confirmed accuracy of identifications in record of interview – Risk of displacement effect – Facebook searches conducted by one complainant and a witness seeking to locate picture of offender – Significant opportunities to observe offender –Complainants expressed a high level of certainty in their identification of the offender –Photo boards reasonably constructed – No appreciable delay between alleged offending and each photo board identification – No displacement effect arising from the Facebook searches – Identification evidence of both complainants of high probative value – Frailties in the evidence able to be fully exposed to jury – Strong curative judicial directions able to be given – Little risk of unfair prejudice to accused. Probative value of identification evidence of both complainants not outweighed by a danger of unfair prejudice
Legislation Cited: Evidence Act 2008
Cases Cited:Moreno (a pseudonym) v The Queen [2023] VSCA 98
Ruling: Picture identification evidence of both complainants admissible
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr T C Wallwork with Mr J McCarthy | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr J Blackley | SLKQ Lawyers |
HIS HONOUR:
Introduction
1The accused is charged on indictment with alleged offences involving two complainants, BR and DW. In relation to BR, he is charged with one charge of sexual assault of a child under the age of 16 (Charge 1) and one charge of false imprisonment (Charge 5). In relation to DW, he is charged with two charges of sexual penetration of a child under the age of 16 (Charges 2 and 3), one charge of trafficking a drug of dependence to a child (Charge 4), and one charge of false imprisonment (Charge 6). He intends to plead not guilty to all charges.
2The accused applies for orders excluding evidence that the prosecution intends to lead at his trial regarding:
(i)the complainant BR on 15 May 2019 identifying the accused from a photo board prepared by police; and
(ii)the complainant DW on 18 April 2019 identifying the accused from a photo board prepared by police.
3The accused does not seek the exclusion of this evidence pursuant to s115 of the Evidence Act 2008 (‘EA’). Rather, the application is made pursuant to s137 of the EA on the basis that the probative value of the picture identification evidence of each complainant is, in each case, outweighed by the danger of unfair prejudice to the accused.
4On 2 May 2024, I refused the applications and ruled the picture identification evidence of BR and the picture identification evidence of DW admissible in the accused’s trial. I gave very brief reasons at that time and said I would provide detailed reasons at a later time. These are those reasons.
5There are two separate and distinct applications before me and two rulings made by me in respect of the picture identification evidence to be given by each complainant, BR and DW. However, since the facts, applicable law and the issues to be determined are closely similar and considerably intertwined, it is convenient for me to give my reasons for both rulings in one document.
Background
6BR and DW, together with friends ET, JS and MD (‘the friends’), lived in a small country town in north-central Victoria (‘the town’) and were all about 14 years of age at the relevant time. During the afternoon of 16 February 2019,[2] the complainants and the friends attended various houses in the town intending to purchase cannabis.
[2] The charges on the Indictment allege the offending occurred between 1 February 2019 and 28 February 2019. However, I accept the evidence puts the date as being 1 February 2019.
7The prosecution alleges that late in the afternoon, the complainants and the friends attended a house at 4 PC[3] to purchase cannabis. A man answered the door. The complainants communicated with the man in an attempt to purchase cannabis. He initially refused. The complainants gave him $70 for cannabis. He took the complainants into the backyard of the property where he counted the money. He said they were $30 short and that they would need to ‘work it off’.
[3] The address has been anonymised to protect the accused’s identity because he is awaiting trial.
8The man then grabbed BR’s breast (Charge 1). He then allegedly took DW into a garden shed where he inserted his penis into her vagina (Charge 2). It is alleged he then inserted his penis into DW’s anus (Charge 3).
9Whilst this was occurring, BR was contacting the friends on her mobile telephone via text messages. She decided not to leave the premises because she was concerned for DW’s welfare.
10The complainants and the man then walked across the street to another house in PC which they entered. They all remained in this house for approximately 30 to 45 minutes. During the time they were inside the house, DW told BR she had been raped by the man.
11A male occupant of the house (not the alleged offender[4]) offered the complainants drinks and spoke to them about his family. The alleged offender touched DW (uncharged act) and then left the house to obtain cannabis. He returned with the cannabis and told the complainants they could not leave the house until they all smoked some cannabis together. DW, the alleged offender and the male occupant of the house smoked cannabis together. BR declined to partake. This alleged conduct gives rise to Charges 4, 5 and 6.
[4] The terms ‘alleged offender’ and ‘perpetrator’ are used interchangeably to refer to the person who is alleged to have committed the offences charged on the indictment.
12The complainants left the house and walked to an adjacent park where they told the friends what had happened.
13On 30 March 2019, DW’s mother learned of the allegations and reported the matter to police.
14On 31 March 2019, BR and DW attended Bendigo police station where they each made VARE statements.[5]
[5] Pursuant to the Criminal Procedure Act 2009 (‘CPA’) Part 8.2, Division 5.
15On 1 April 2019, ET attended the town police station and made a VARE statement.
16On 9 April 2019, the accused was arrested, cautioned, interviewed, charged and released on summons.
17On 18 April 2019, the original informant, Detective Senior Constable (D/S/C) Jacqui Stubbins, attended on DW for the purpose of conducting a photo board identification. DW made a positive identification of the accused and made a statement to that effect.[6]
[6] Dated 18 April 2019, deps p 118 (Ex P5).
18On 8 May 2019, JS and MD attended the town police station where they each made VARE statements.
19On 15 May 2019, D/Sgt Renee Campbell, who is now the informant for the purpose of these proceedings, attended on BR for the purpose of conducting a photo board identification. BR made a positive identification of the accused and made a statement to that effect.[7]
[7] Dated 18 April 2019, deps p 146 (Ex P4).
20On 16 May 2019, Senior Constable (S/C) Narelle Taylor attended on ET for the purpose of conducting a photo board identification. ET was unable to make a positive identification of the accused and made a statement to that effect.
21The prosecution alleges the accused is the offender. The accused denies being involved in, or being present during, any offending as alleged. Accordingly, at trial the main issue for the jury to determine will be whether the accused is the person alleged to have committed the offences charged in the Indictment, or any of them.
Evidence relevant to the present applications
22BR’s video and audio recorded evidence (‘VARE’)[8] conducted on 31 March 2019,[9] the photoboard shown to her[10] and her photoboard identification statement made 15 May 2019[11] are contained in the depositions. A special hearing was conducted in relation to BR’s evidence before his Honour Judge Wraight on 10 July 2023.
[8] See Criminal Procedure Act 2002 (‘CPA’) s 367.
[9] See depositions (‘deps’) pp 120–145.
[10] Deps p 350 (Exhibit (‘Ex’) P1).
[11] Deps pp 146–147.
23DW’s VARE conducted on 31 March 2019,[12] the photoboard shown to her[13] and her photoboard identification statement made 18 April 2019[14] are contained in the depositions. A special hearing[15] was conducted in relation to DW’s evidence before her Honour Judge Carlin on 26 May 2023.
[12] Deps pp 51–117.
[13] Deps p 346 (Ex P2).
[14] Deps pp 118–119.
[15] See CPA s 370.
24ET’s VARE conducted on 1 April 2019,[16] the photoboard shown to her[17] and her photoboard identification statement made 16 May 2019[18] are contained in the depositions.[19]
[16] Deps pp 148–171.
[17] Deps p 348 (Ex P3).
[18] Deps pp 170–171.
[19] Deps pp 148–169.
25The accused’s record of interview conducted on 9 April 2019 is contained in the depositions.[20]
[20] Deps pp 352–392.
26Other relevant evidence contained in the depositions comprises the statements of D/S/C Stubbins made on 24 October 2019, relating to the compilation of a photo board by her on 16 April 2019,[21] and another statement made on 24 October 2019, relating to the conduct by her of the photo board identification procedure with DW,[22] together with further statements made on 15 May 2019 relating to the compilation of a photo board by her on that day[23] and the statement of then D/S/C Campbell made on 24 October 2019 relating to the conduct by her of the photo board identification procedure with BR.[24]
[21] Deps pp 293–294. This is a reference to the photo board shown to DW (Ex P2).
[22] Deps pp 295–296.
[23] Deps pp 297–298. This is a reference to the photo board shown to BR (Ex P1).
[24] Deps pp 321–322.
27Additionally, voir dires conducted pursuant to EA s189 and pre-trial examinations conducted pursuant to s198A of the Criminal Procedure Act 2009 (‘CPA’) were held as follows:[25]
BR on 1 February 2024.
DW on 30 January 2024, 1 February 2024 and 22 March 2024.
ET on 30 January 2024 (s198A examination) and 22 March 2024.
D/Sgt Campbell on 22 March 2024.[26]
D/S/C Stubbins (s198A examination) on 30 January 2024.
[25] The hearing was conducted as a voir dire unless otherwise indicated.
[26] D/Sgt Campbell was a D/S/C at the time of the investigation.
28The following is a summary of the relevant evidence. It is not intended to be comprehensive.
Description of the perpetrator
DW
29In her VARE, DW described the perpetrator as fairly tanned with ‘blackish brown’ hair, brown eyes, a stubble beard and aged in his mid to late 40s.[27] DW was fairly sure that the man only had two or three front teeth and was approximately 173cm tall. [28] DW remembered the perpetrator wearing ‘trackies’ and a flannel t-shirt with a collar.[29]
[27] DW, VARE, 31 March 2019, Q&A 112–118 (depositions page 63) (‘DW, 31-03-2019’) (‘D63.112–118’).
[28] Ibid D64.119–125; DW, Special Hearing, 26 May 2023, transcript, page 21, lines 4–6, 23–24 (‘T21.4–6, T21.23–24’) (‘DW, 26-05-2023’).
[29] DW, 31-03-2019, D64.126–D65.130.
30DW’s description of the perpetrator was confirmed at the special hearing on 26 May 2023 and voir dire conducted on 30 January 2024.[30] At the special hearing, DW gave evidence that she never saw any tattoos on the man’s arms or neck.[31]
BR
[30] DW, 26-05-2023, T52.12–T53.11; DW, voir dire, 30 January 2024, T22.19–31 (‘DW, 30-01-2024’).
[31] DW, 26-05-2023, T53.14–15.
31In both her VARE and the special hearing heard on 10 July 2023, BR described the perpetrator as a really tall man with some kind of limp.[32] The man had ‘a little bit of hair’[33] and was aged roughly in his late 40s to early 50s.[34] BR thought the man was wearing a singlet, shorts and black steel-capped boots.[35] BR also remembered the man having ‘tattoos all up his arms’, although she did not pay attention to them.[36] BR described his teeth as ‘small’ or ‘short’ and ‘straight’ with a gap on the side of his mouth.[37]
[32] BR, VARE, 31 March 2019, D.121.17, D.131.70 (‘BR, 31-03-2019’); BR, Special Hearing, 10 July 2023, T29.24–26, T30.3–4 (‘BR, 10-07-2023’).
[33] BR, 31-03-2019, D131.70.
[34] Ibid D132.75.
[35] Ibid D131.73; BR, 10-07-2023, T30.11–18.
[36] BR, 31-03-2019, D131.73–D132.74; BR, 10-07-2023, T30.24–27.
[37] BR, 31-03-2019, D131.71; BR, 10-07-2023, T30.21–23.
32BR confirmed her description of the perpetrator at the voir dire conducted on 1 February 2024.[38]
[38] BR, voir dire, 1 February 2024, T38.17–T39.6 (‘BR, 01-02-2024’).
Opportunities for observation of the perpetrator
33Both BR and DW express that they met the perpetrator at the front door when he answered the doorbell.[39] They were then brought into the backyard by the man, where he spoke to them before taking DW into the shed.[40] There was only ‘a little bit of light’ in the shed.[41]
[39] DW, 31-03-2019, D65.134.
[40] Ibid D65.135, D66.137.
[41] DW, 26-05-2023, T33.18–22.
34When the perpetrator took BR and DW across the road to the other house in PC, there were further opportunities for observation as they sat in the lounge room together.[42]
[42] Ibid T44.4–8; DW, 31-03-2019, D.71.173, D.73.181–182.
Ability to observe the perpetrator
35Throughout their evidence, BR and DW were examined on their states of mind throughout the offending period. Defence counsel intended to challenge their ability to observe the perpetrator which could have impeded their ability to identify him at a later stage.
36BR and DW were cross-examined extensively on their feelings of fear, if any, in the presence of the perpetrator, and whether that affected their memory. DW said she began feeling afraid for her safety in the backyard, and remained in a distressed state until she rejoined her friends in the park.[43] From when she was left alone with the perpetrator, DW ‘pretty much just zoned out [and] couldn’t comprehend, like, what was happening’.[44] In her VARE, DW said that while she had never seen the perpetrator before the alleged offending, nor had she seen him since, she would know what the man looked like if she saw him again.[45]
[43] DW, 30-01-2024, T20.29–T21.6, T21.24–25, T29.27–T30.1.
[44] DW, 31-03-2019, D71.172.
[45] Ibid D116.509–511.
37At the voir dire on 1 February 2024, BR described becoming scared in the backyard when the man ‘leant over to move [her] jacket and … when [DW] had gone into the shed.[46]
[46] BR, 01-02-2024, T36.10–13.
38DW smoked cannabis while at the other house with the perpetrator and his friend, whereas BR did not.[47] At the special hearing on 26 May 2023, when questioned about this experience, DW described feeling ‘a little bit’ high, but ‘more shocked than anything’.[48] At the voir dire on 30 January 2024, DW repeated that she did not feel ‘high’.[49] BR observed DW as ‘stoned’ and ET described DW, upon returning to the park, as ‘giggly’ and with bloodshot eyes.[50] At the voir dire on 22 March 2024, D/Sgt Campbell commented on DW’s memory: ‘her account could be vastly different to someone … that was not drug affected’.[51]
Genesis of the name ‘James’[52]
[47] Ibid D74.187; DW, 26-05-2023, T47.3–8.
[48] DW, 26-05-2023, T48.16–28.
[49] DW, 30-01-2024, T21.17.
[50] BR, 01-02-2024, T37.31–T38.1; ET, VARE, 1 April 2019, D161.107, D162.116–117 (‘ET, 01-04-2019’); ET, Section 198 Examination, 8 September 2023, T31.7 (‘ET, 08-09-2023’); ET, s 198A Examination, 30 January 2024, T45.26 (‘ET, 30-01-2024’).
[51] D/Sgt Renee Campbell, voir dire, 22 March 2024, T56.25–28 (‘D/Sgt Campbell, 22-03-2024).
[52] The pseudonym ‘James Low’, has been substituted for the accused’s actual name to protect his identity as he is awaiting trial. See DW, 31-03-2019, D75.190; DW, 30-01-2024, T36.11–18.
39DW’s evidence has consistently been that ET told her the perpetrator’s name was ‘James’. According to DW’s evidence, ET learnt of the name from her mother.[53] ET only gave DW his first name.[54] When first questioned on this issue, DW was unsure when she discussed the name with ET. Later, DW clarified ET told her his name was ‘James’ at a time between when the incident occurred and when the report was made to police in March 2019.[55]
[53] DW, voir dire, 22 March 2024, T41.22–24 (‘DW, 22-03-2024’); DW, 30-01-2024, T37.22.
[54] DW, 22-03-2024,T41.18–19.
[55] Ibid T42.31–T43.3.
40On BR’s evidence, she learnt the man’s name was ‘James’ from the police when she gave her VARE, but did not hear it from ET or DW.[56] In her voir dire on 1 February 2024, BR said she was ‘pretty sure [the police] said the name ‘James Low’, or the police may have only given [her] his first name’.[57] She was ‘not too certain’.[58]
[56] BR, 01-02-2024, T50.23–27.
[57] Ibid T48.13–14.
[58] Ibid T48.17.
41There was evidence given by ET to the effect that DW nominated the perpetrator’s name as ‘James’ to her.[59] ET describes the conversation as having taken place in the park when BR and DW rejoined her and the other friends on the day of the incident.[60] This evidence, referred to by the parties as ‘the park conversation’, has since been excluded.[61]
Circumstances surrounding the photo board identifications
[59] ET, 01-04-2019, D154.42; ET, 08-09-2023, T33.26–27; ET, 30.01.2024, T46.5–8.
[60] ET, 30.01.2024, T46.13–17.
[61] See DPP v Low (a pseudonym) (Ruling No 6).
Production of the photo boards
42According to D/S/C Jacqueline Stubbins, when investigating an offence where the identity of the offender is unknown, photo boards can be used as there is no preferred method of identification.[62] During the s198A examination on 30 January 2024, D/S/C Stubbins explained the production of a photo board. First, a name is entered into the application used to generate photo boards and a photograph of the accused is selected.[63] The application then automatically populates 11 photographs of a similar description.[64] When questioned about how the photographs are selected, D/S/C said:
[the application] looks at the hair colour, the tattoos, the facial expressions…and goes through driver licences, LEAP photographs, all that kind of stuff, and chooses, automatically, the other 11 photographs to put in a photo board.[65]
D/S/C Stubbins believed photographs can be swapped if they are too different from the suspect’s appearance, but she was unsure whether she did that in this case.[66]
[62] D/S/C Jacqueline Stubbins, s 198A Examination, 30-01-2024, T57.7–10 (‘D/S/C Stubbins, 30-01-2024’).
[63] Ibid T61.10–14.
[64] Ibid T61.14–16.
[65] Ibid T62.3–8.
[66] Ibid T61.21–25.
43D/S/C Stubbins had no input as to which 11 photographs were chosen as the application creates the selection based on the photograph of the suspect.[67]
[67] Ibid T62.2–8.
44Once the photo board was generated and printed, D/S/C Stubbins compiled two manila folders; one with the photo board and another with all the statements and information for the witnesses to read through prior to completing the identification process.[68]
[68] Ibid T62.27-T63.1–2.
45A police officer attended the houses of DW, BR and ET with the photo boards.[69]
[69] Ibid T55.21–23.
46When cross-examined on how these particular photo boards were compiled, D/S/C Stubbins agreed it would be unfair to select photographs where every option except for the suspect’s photograph could be disqualified.[70] On D/S/C Stubbins’s assessment, the photo boards presented to DW, ET and BR included a fair spread of photographs.[71] D/S/C was not of the opinion, when asked by defence counsel, that it would have been fairer to include photographs of the other men who lived at 4 PC.[72] D/S/C Stubbins said:
If they look completely different or they don’t have tattoos, then it will be unfair to the accused person. It would be a better option to run separate photo boards of the four men, if that was to happen, but not to include all four men in the one photo board’.[73]
[70] Ibid T64.10–13.
[71] Ibid T65.2–3, 14–15, 22–23.
[72] Ibid T71.23–26.
[73] Ibid T71.31–T72.5.
47D/S/C Stubbins was not aware whether it was possible, or allowed, to place all of the men who lived at the house on one photo board.[74] D/S/C Stubbins also did not know whether the descriptions of the perpetrator given at the time of the VAREs matched the other three men who were in the property.[75]
[74] Ibid T72.30–31.
[75] Ibid T73.6–8.
Viewing of the photo boards
DW
48During the s198A examination heard on 30 January 2024, D/S/C Stubbins could not recall the conversation she had with DW when she went to her house with the photo board.[76] The conversation was not recorded, but DW’s statement[77] outlines what was discussed when the photo board was presented to her. D/S/C Stubbins was accompanied by two other officers.[78] The photo board was shown to DW in colour.[79] The police officers were at DW’s house for approximately half an hour and on her evidence, DW looked at the photographs for ‘long enough to know who it was’.[80]
[76] Ibid T55.28–29.
[77] Ex P5.
[78] D/S/C Stubbins, 30-01-2024, T56.1–3.
[79] DW, 30-01-2024, T25.28–30.
[80] Ibid T39.6–8.
49DW was cross-examined on her photo board identification at the voir dire on 30 January 2024. DW could not recall exactly what the police officers said to her.[81] However, at the time DW understood a photograph of the suspect would be among the selection of images and it was her role to select a person from the board.[82]
[81] Ibid T20.1–5.
[82] Ibid T20.6–8, T23.4–12.
50At the special hearing conducted on 26 May 2023, DW confirmed she selected photograph 4 because she ‘just identified the face…this was a face [she] couldn’t forget’.[83] DW also described the person she identified in photograph 4 as James Low, who raped her.[84] In her statement taken on 18 April 2018, DW said she indicated to photograph 4 by pointing and saying ‘it’s number 4. Just the way his face is resting’.[85]
[83] DW Special Hearing P14 L21-24.
[84] Ibid P14 L26-28.
[85] Ex P5.
51At the voir dire on 30 January 2024, DW was also cross-examined about how she was able to differentiate the other photographs on the board with photograph 4 and in comparison with the description given to police.
52DW agreed photographs 5, 7 and 8 could be disqualified because the men pictured looked younger than someone aged in their mid-to-late forties.[86] DW agreed photographs 2, 11 and 12 could be excluded because of their ‘unique facial features’.[87] When questioned, DW explained photograph 10 was disqualified because of his eyes.[88] Photographs 1 and 6 depicted men with long hair and, as confirmed by DW, could be disqualified.[89] Finally, photograph 9 was capable of exclusion because he had thinning hair, resembling a receding hairline.[90] It follows the only photograph DW could not disqualify was photograph 4.[91]
[86] DW, 30-01-2024, T27.7–14.
[87] Ibid T28.21–24.
[88] Ibid T29.8.
[89] Ibid T29.10–13.
[90] Ibid T29.14–18.
[91] Ibid T29.19–20.
53When questioned about what features of photograph 4 were similar to her description of the man’s features in her VARE, DW responded:
His hair colour, his skin colour, his eyes, his look – like his face. Just – everything about him adds up to him’.[92]
[92] Ibid T25.24–27.
54Despite rigorous cross-examination by experienced counsel, DW remained certain of her identification.[93]
BR
[93] Ibid T39.22–25.
55When presented with the photo board, BR was unaware if the perpetrator would be featured in one of the photographs but assumed ‘he’d be in there if [the police] got the right person’.[94] BR understood her role to be to select a photograph that resembled the man the most.[95]
[94] BR, 01-02-2024, T39.16–19.
[95] Ibid T39.20–23.
56D/S/C Stubbins attended BR’s house with the photo board but could not recall the conversation she had with her.[96] D/S/C Stubbins was accompanied by D/Sgt Campbell and the photo board identification process with BR was not recorded.[97]
[96] D/S/C Stubbins, 30-01-2024, T56.7–9.
[97] Ibid P56 L10-15.
57At the voir dire on 1 February 2024, BR was cross-examined about how she was able to distinguish the other photographs to the one she identified, while also considering the description of the perpetrator given to police and confirmed in her earlier evidence.
58BR said she was able to disqualify photographs 1, 4, 10 and 12 because they were simply ‘not him’, but accepted defence counsel’s proposition that the people pictured appeared to be younger than someone in their late-forties to fifties.[98]
[98] BR, 01-02-2024, T40.21–31, T41.1–4, 8-15, T42.10–14.
59When questioned whether photograph 7 could be disqualified because of his ‘unique facial feature; that is, his ears [were] sticking out’, BR’s answer was, again, ‘it wasn’t him’ and could be excluded.[99] BR did agree, however, that photograph 7 could be disqualified because he had a goatee.[100] BR was able to rule out photograph 11 because he was, in her words, a ‘totally different person’.[101] BR agreed photograph 8 could be disqualified because she never described the perpetrator to have a chin or face resembling the man photographed.[102] BR accepted she was able to exclude photograph 5 because of his fair complexion and round head.[103] BR could disqualify photographs 2 and 9 because the men pictured had curly hair.[104]
[99] Ibid T42.18–22.
[100] Ibid T42.23–31.
[101] Ibid T43.18–20.
[102] Ibid T43.1–12.
[103] Ibid T44.2–8.
[104] Ibid T44.9–16.
60Photograph 3 was selected by BR as the perpetrator. In her statement,[105] BR confirms she indicated to photograph 3 by pointing and saying, ‘that one’. When questioned why she selected photograph 3, BR responded by saying she remembered the face.[106]
[105] Ex P4.
[106] BR, 01-02-2024, T58.14–15.
61Despite the thorough cross-examination of BR, she remained ‘a thousand per cent certain’ the man she identified was the man who assaulted her and DW.[107]
ET
[107] Ibid T46.1–2, T45.11–12.
62ET was also shown a photo board. D/S/C Stubbins could not recall the conversation she had with ET when she attended her house with the photo board.[108] D/S/C Stubbins believed she was accompanied by D/Sgt Campbell and did not record the process.[109] In the statement signed by ET and dated 16 May 2019, it is noted that S/C Taylor attended on ET with the photo board. ET viewed the images and said she had ‘no idea’ who the person was because she did not see him.[110]
[108] D/S/C Stubbins, 30-01-2024, T56.23–25.
[109] Ibid P56 L26-28.
[110] ET, 08-09-2023, T37.3–12.
63In her statement to police,[111] ET confirmed she was shown ‘a piece of paper with different photos on it’ and asked by police if she ‘could identify the man that hurt [DW]’.[112] ET also confirmed she did not recognise anyone on the photo board and did not select a photograph.[113]
[111] Dated 5 February 2024 (Ex P6).
[112] Ibid para 10.
[113] Ibid.
Displacement effect assertion
64Evidence has been given by DW and ET that while at BR’s house they searched for the perpetrator on Facebook on at least two occasions. BR was not present when this occurred.
65On the first occasion, DW and ET only searched for ‘James’. DW gave a statement to police,[114] in which she said she did not remember the exact date, but believed the search could have occurred after the photo board was shown to her.[115] ET gave evidence that while she was unsure exactly when the Facebook search took place, she thought she and DW looked for the perpetrator’s profile before her VARE on 1 April 2019.[116] DW and ET attempted to use search filters in relation to where they lived, however they were unable to locate his profile.[117]
[114] Dated 1 February 2024 (Ex P7).
[115] Ibid para 5.
[116] ET, 30-01-2024, T46.29.
[117] DW, 01-02-2024, T26.19–20.
66During the voir dires conducted on 1 February 2024 and 22 March 2024, DW clarified she only became aware of the full name, ‘James Low’, after she was provided with the transcript marked, on her evidence, ‘James Low v [DW] case’. Prior to this, DW did not know the man’s last name.[118]
[118] Ibid T23.1–4. See also DW, 22-03-2024, T45.23.
67On the second occasion, ET and DW performed a Facebook search using the full name ‘James Low’[119] and were able to locate James Low’s Facebook profile. DW was emphatic in her evidence about the timing of this full name Facebook search. According to the evidence given on 22 March 2024, the search occurred ‘after [DW] had gotten the transcript and looked through the photo board’.[120] DW repeatedly gave evidence that she was given the transcript after she had identified the perpetrator to police.[121] It is DW’s evidence that this second Facebook search is the only time DW located the man’s profile.[122]
[119] Ex P7, para 6.
[120] DW, 22-03-2024, T45.21–23.
[121] DW, 01-02-2024, T24.4–9.
[122] DW, 22-03-2024, T45.26–29.
68ET is less certain about when she discovered the Facebook profile with DW. ET did not remember an occasion where they searched for the perpetrator’s full name and thought they only looked up ‘James’.[123] ET remained sure, however, of only searching on Facebook with DW.[124] ET also remembered DW spotting the profile and saying something to the effect of ‘That’s him’.[125]
[123] ET, voir dire, 22 March 2024, T26.18–19 (’ET, 22-03-2024’).
[124] Ibid T27.21–23.
[125] Ibid T26.24–27.
69With respect to what steps D/Sgt Campbell had taken to establish the timeframe in which DW and ET conducted the Facebook search, D/Sgt Campbell contacted Kate Murray, an analyst from the Central Victoria Divisional Intelligence Unit. Ms Murray used an online persona to locate the Facebook profile with the name ‘James Low’, believed to be the profile referred to by ET.[126]
[126] D/Sgt Campbell, 22-03-2024, T57.22–29.
70In relation to how the mobile phones of the witnesses were used in the investigation, the phone material was captured by police in March or early April 2019.[127] D/Sgt Campbell’s understanding was the witnesses communicated on Snapchat and the conversations, as is the nature of the application, were not retained.[128] For this reason, D/Sgt Campbell did not perceive the phones to be of value.[129] On 5 February 2024, defence requested an extraction of the mobile phones belonging to BR, DW and ET for the period of 1 April 2019 to 15 May 2018, however the witnesses no longer have access to the relevant phones.[130]
[127] Ibid T52.23–25.
[128] Ibid T52.26–29.
[129] Ibid T52.30–31.
[130] Statement of D/Sgt Renee Campbell dated 14 February 2024, para 6 (Ex P8).
71With respect to when DW would have become aware of the man’s full name, S/C Nathan Marsh provided a statement dated 16 February 2024, in which it was confirmed paperwork was given to DW. An Endorsement Form detailing service of the transcript was signed by S/C Marsh on Thursday 20 May 2021,[131] a date after both DW’s VARE and photo board identification. Attached to D/Sgt Campbell’s statement was a photograph of the envelope given to DW, which DW’s mother had retained.[132] The envelope was clearly labelled: ‘Attn: [DW]. Read in Private. DPP v James Low. Transcript’.[133]
[131] Ibid paras 13-14.
[132] Ibid para 12.
[133] Ibid.
72Screenshots of the ‘James Low’ Facebook profile sourced by Ms Murray were tendered at the voir dire of D/Sgt Campbell on 22 March 2024.[134] The majority of the images uploaded on the profile were posted on a date after the photo boards were shown to BR, DW and ET.[135]
[134] Ex P9.
[135] D/Sgt Campbell, 22-03-2024, T57.31.
73Defence counsel put to DW that she would have been motivated, as BR’s friend, to tell her what the perpetrator’s name was. DW had no recollection of sharing the name to BR for that, or any other, reason.[136] It was also put to DW that she would have been motivated by her friendship with BR to show her the Facebook profile. DW’s responses were ‘I do not remember’ and ‘I don’t know’.[137]
[136] DW, 22-03-2024, T44.6–12.
[137] Ibid T47.23–24.
74Defence counsel put to ET that the identity of the perpetrator was important to her because she would have wanted to assist DW in identifying the man she believed had assaulted her, to which ET agreed.[138] Defence counsel also put to ET that she would have been interested in knowing the identity of the man so she could protect herself, as they lived on the same street.[139] ET agreed with this statement. It was also suggested to ET that the identity of the man would have been important for BR to know, and ET would have shown BR the Facebook profile.[140] ET’s response was ‘Yeah, I agree’. [141] During re-examination on this issue, ET clarified she did not remember whether or not she showed BR the Facebook profile.[142]
[138] ET, 30-01-2024, T47.4–9.
[139] ET, 22-03-2024, T28.7–11.
[140] Ibid T28.26–28.
[141] Ibid T28.28.
[142] Ibid T33.3–4.
75When cross-examined, BR said she did not know whether the identity of the man was important to ET and DW.[143] BR could not recall whether she was involved in a conversation with ET and DW about the man’s identity.[144] BR was unable to remember searching for the man on Facebook with ET and DW.[145] As previously summarised, BR believed she learned of the name ‘James Low’ from the police when she recorded her VARE,[146] but did not think having his name was important and did not share the name with ET or DW.[147] On BR’s evidence, at no stage after the offending period did she speak to other people about the man’s identity.
[143] BR, 01-02-2024, T46.27–31.
[144] Ibid T47.6–7.
[145] Ibid T47.8–11, T49.17–18.
[146] Ibid T48.6–14.
[147] Ibid T48.18–23.
Defence submissions
76The accused has filed three written submissions as follows:
(1) Outline of Submissions on Admissibility of Identification Evidence dated 24 January 2024.[148]
(2) Outline of Submissions on Admissibility of Identification Evidence dated 5 February 2024.[149]
(3) Further Addendum Submissions on Admissibility of Identification Evidence dated 2 April 2024.[150]
These written submissions were supplemented by oral argument.
[148] ‘Defence Submissions No 1’ (Ex D1).
[149] ‘Defence Submissions No 2’ (Ex D2).
[150] ‘Defence Submissions No 3’ (Ex D3).
77Before the voir dires and s198A examinations were conducted, the accused submitted the probative value of the identification evidence of each complainant is ‘slight’. This was based on the evidence contained in the depositions and the evidence given by the complainants at special hearings.[151] The accused relied on the following ‘circumstances surrounding the evidence’:[152]
[151] DW’s special hearing was conducted before her Honour Judge Carlin on 26 May 2023 and BR’s special hearing was conducted before his Honour Judge Wraight on 10 July 2023.
[152] See IMM v The Queen (2016) 257 CLR 300, 314–15 [50] (French CJ, Kiefel, Bell and Keane JJ) (‘IMM’); Moreno (a pseudonym) v The Queen [2023] VSCA 98 [54] (Priest AP, Niall and Kaye JJA) (‘Moreno’).
(a) The complainant’s and the accused were unfamiliar with each other prior to the alleged offending.
(b) The accused has ‘a distinctive tattoo marking on his neck’ and features on the photo board as the only person who ‘demonstrably’ has a tattoo marking on his neck.
(c) It can be inferred from both complainants’ evidence they were under ‘significant … stress at the time of making observations’ of the alleged offender and consequently they ‘have an imprecise memory [from] which to recall’.
(d) There is evidence from which it can be inferred that, at the time of giving their evidence, each complainant ‘presented as witnesses with challenges to their respective ability’ to concentrate, communicate and recall past events. The accused relied on the contents of the intermediary report for BR dated 22 June 2021 (Ex D4) and an addendum intermediary report for BR dated 22 May 2023 (Ex D5) and the intermediary report for DW dated 24 June 2021 (Ex D6) and an addendum intermediary report for DW dated 17 April 2023 (Ex D7).
(e) Each complainants’ evidence regarding the alleged offender’s description is ‘vague’ and inconsistent with each other and other witnesses who made relevant observations.
(f) The identification method used (photo board) was ‘the least reliable method possible’, particularly considering the accused was not afforded an opportunity to participate in an identification parade. Moreover, the photo board ‘array posited the accused as the only person with a distinctive tattoo marking on his neck’ and no other men who were said to be present at the house at the relevant time, which the accused submits on the evidence ‘were known to the police’, were featured on the photo board. The ‘net result’ according to the accused’s submission is that ‘the compilation of the photo board created an implicit suggestion to each witness that the accused was the subject offender’.
(g) There was ‘an appreciable delay’ of 89 days in the case of BR and 62 days in the case of DW between the respective complainant’s initial observation of the alleged offender and the conduct of the identification procedure, which is said to have been ‘compounded by the challenges’ each complainant faced.
(h) The only records kept were template statements made by each complainant and D/S/C Stubbins. ‘No visual recording’ was made of the conduct of either identification procedure. Nor was there any statement ‘to the effect of how the photographs were selected or for what purpose in the investigation the photo boards were being created’. The ‘net effect’ is said to be ‘that the identification procedure was a means to an end, confirming the suspicion of the informant (who had already arrested, interviewed and charged the accused) and bolstering the brief of evidence after the fact’.
(i) Each complainant’s ‘state of mind’ during the identification process is unknown. It is submitted, ‘it can be inferred from the body of evidence’ that each complainant was ‘in a panicked, stressed state and concerned for their safety’.
(j) The ‘risk of displacement’ in the present case is said to be ‘a nuanced point’. There is ‘only one single assertion of identification’. On the evidence, it is ‘common ground’ that the accused came into contact with the complainants ‘during the relevant time’. Referring to R vBlundell,[153] it is submitted the two witnesses have ‘context cues’ to remember the alleged accused’s ‘facial features’. Given the composition of the photo board and its ‘implicit suggestion (see [f] above) and the delay of the identification process (see [g] above)’, there is a danger ‘the photograph of the accused has displaced the actual memory of each witness of the [offender]’.
(k) It is said to be ‘unclear as to the level of confidence each witness has asserted the identification’.[154] The complainants are said to have each given a ‘vague’ and ‘equivocal’ description of the alleged offender which is to be ‘contrasted by the unqualified assertion during each respective [photo board] identification’ procedure.
(l) Leaving aside the picture identification evidence, it is said there remains ‘only descriptive evidence from witnesses supporting the identification’. The descriptive evidence between BR and DW is ‘inconsistent with the [picture] identification evidence’. Likewise, ‘the collective body of evidence from those witnessing events from the park’ (namely ET, JS and MD) is said to be ‘inconsistent with the [picture] identification evidence’.
(m) Finally, there is said to be ‘some reliability concerns’ in respect of both BR and DW in that each complainant is ‘attempting to recall events or perceptions some weeks or months after [they] happened’. Moreover, by the end of the events giving rise to the charges, DW is said to have been ‘heavily intoxicated by cannabis’. Both BR and DW are said to ‘give vague descriptive evidence of the [alleged offender] which when compared together are inconsistent’. Both recollections are described as being ‘inconsistent with independent witnesses in the park’ and both complainants ‘are under significant stress during the events’.
[153] [2019] SASCFC 84.
[154] I note each complainant’s evidence given on the voir dires considerably clarifies this situation.
78The accused then submits ‘the danger of unfair prejudice is significant’. He relies on the following considerations:
(a) ‘The evidence as it is presented makes available an inference that the accused was previously known to the police’. The photo board prepared in April 2019 contains a photograph of the accused with medium length hair. BR and DW describe the alleged offender as having ‘short-cropped hair’ in February 2019 and he has ‘short-cropped hair’ in the record of interview conducted on 9 April 2019. The accused submits, the ‘inescapable inference’ is that the photograph of him used in the photo board identifications must have been taken prior to February 2019. It is said, ‘This danger of unfair prejudice arises only by virtue of the mode of the identification.’
(b) It is submitted, the jury will ‘undoubtedly be impressed by the confidence expressed by each’ complainant. It is argued, ‘there is a practical limitation to the way one can test the quality of this type of evidence in cross examination, especially given the questioning of witnesses is governed by the grounds rule (sic.) ruling together with the protection of intermediaries’. Consequently, ‘it is conceivable that the jury will not have available all of the circumstances which might affect their assessment of the probative value of the identification evidence’. Referring to the High Court’s decision in R v Dickman,[155] the accused submits the identification evidence does not possess ‘readily apparent limitations’, which runs the risk the jury may over estimate the value of the evidence. This risk is exacerbated by ‘the disadvantage of the accused in testing the evidence’ as a result of the use of intermediaries and the need to follow ground rules.
(c) Given the inconsistencies in the ‘descriptive evidence’ (discussed at (paragraph (l) above), the accused submits, ‘the importance of the identification evidence becomes less probative and thus, less important’. The conclusion the identification evidence is inconsistent between witnesses, especially between the complainants and the friends in the park, is said to be available on the evidence. This, the accused submits, ‘reduces the probative force of the subsequent positive assertion of identification by BR and DW’.
(d) Finally, the accused submits:
In Dickman, the Victorian Court of Appeal referred to the ‘seductive quality’ of identification evidence. The High Court acknowledge the difficulty in curing prejudice of identification evidence by directions. In this case, there are very few ‘apparent limitations' to the identification evidence observable to the lay person. This, on the reasoning of the High Court suggests the proper exercise of discretion is to exclude the evidence.
[155] (2017) 261 CLR 601, 615–16 [47] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ).
The accused emphasises the ‘seductive quality’ of the picture identification evidence in this case is ‘so significant and of such a subsisting nature’ the risk of the jury giving the evidence excessive weight ‘cannot be overcome or addressed by judicial directions’.
79Following the evidence given by the complainants, ET and D/S/C Stubbins on 30 January and 1 February 2024, the accused filed further written submissions on 5 February 2024.[156] These submissions addressed the following issues:
(a) Interpretation and application of IMM v The Queen[157] to the assessment of probative value of identification evidence.
(b) Summary of the further evidence given by BR, DW, ET and D/S/C Stubbins.
(c) Further submissions on EA s137 arising from the additional evidence.
[156] Ex D2.
[157] (2016) 257 CLR 300.
80In his further submissions on EA s137, the accused describes the probative value of DW’s identification of the accused as ‘scant’.
81The accused is highly critical of the methodology and other aspects of the police investigation. He submits that after D/S/C Stubbins received the initial report that the alleged offender’s name was ‘James’ she ‘systematically failed to verify by objective means the truth of this claim’. He claims that, from that point on ‘the investigation that followed can only be described as an abject failure in terms of procedural fairness to the accused, accountability and objective best practice’.
82The accused points to a number of specific ‘failures’ including not offering him an identification parade prior to conducting a photo board identification procedure with relevant witnesses and a failure to comply with ‘internal [police] guidelines’ when creating the photo boards. He criticises the original informant for:
Failing to exercise discretion to change photographs which were clearly inconsistent with the initial description of the offender when reviewing the spread created by the application.
83He also criticises the original informant for failing to investigate other males who resided at the premises where the alleged offending is said to have occurred ‘who on the information [available] to police, had a consistent physical description to that of the person described by each [complainant] during their respective VARE’.
84The accused submits:
The manner of the investigation in this case is very significant. That is, the individual and sequential failures during the investigation have compounded and has appreciatively reduced the probative value of the identification evidence of each witness.
85The accused further submits ‘the poor investigation has significantly and substantially lowered the quality of each respective identification’.[158] He concludes this aspect of his submissions as follows:
The net effect of the investigation commencing on the premise that [“James”] is the offender has caused the paradigm of the investigation to exclude the possibility of any other suspect available and has conveyed an implicit suggestion via to (sic.) the photo boards to each identification witness.
[158] Original emphasis.
86The accused further submits the combination of an ‘unverified suggestion as to the identity of the offender’ being a man called ‘James’ together with ‘the poor investigation’ has the ‘net effect of a self-fulfilling prophesy’.
87Regarding DW’s identification, the accused submits there is a ‘likely risk of “displacement effect”’ arising from the then state of the evidence regarding the sequence of Facebook searches conducted by DW and ET at the home of BR, using the search terms ‘James’ and, at a later point in time, ‘James Low’. However, in my opinion the strength of this submission is significantly undermined by evidence given by DW, ET and D/Sgt Campbell at the voir dire conducted on 22 March 2024, which clarifies the sequence of relevant events.
88The accused’s ‘primary submission’ regarding the danger of unfair prejudice in admitting DW’s picture identification evidence is ‘the jury may illegitimately use the evidence’ by giving it ‘a weight that is disproportionate to its true value’. He relies on an inability to properly expose to the jury ‘the genesis of who nominated the offender to be [“James”], which then sets off the chain of events seen in the investigation’. This, it is said, ‘prejudices the accused’.
89The accused submits for all these and other reasons, ‘the danger of unfair prejudice is substantial and cannot be guarded against by directions’ and ‘clearly outweighs’ the probative value of DWs picture identification evidence. However, importantly, the accused concedes the ‘limitations’ of DW’s picture identification evidence ‘are easily exposed’ to the jury.[159]
[159] Ex D2 [116].
90Turning to the admissibility of BR’s picture identification evidence, the accused submits the assessment of probative value differs from DW because ‘there is no explicit suggestion of innocent contamination/infection on the evidence’[160] which ‘reduces the risk of displacement effect’.
[160] I take this to be a reference to the Facebook searches on the names ‘James’ and ‘James Low’ involving DW and ET.
91Importantly, the accused concedes the ‘high-water mark’ of probative value of BR’s picture identification evidence is ‘moderate’.[161]
[161] Defence Submissions No 2 [114].
92Nonetheless, the accused submits the ‘self-fulfilling nature’ of the police investigation, the failure to conduct the ‘preferred method’ of an identification parade and the 89-day delay between the alleged offending and BR’s photo board identification of the accused, are ‘inherent defects’ in her picture identification evidence decreasing the probative value of the evidence. Moreover, it is submitted her evidence regarding the reasons she came to select the accused as the offender ‘enhances the submission that the photograph array conveyed an implicit suggestion as to the identity of the suspect’.
93Turning to the danger of unfair prejudice in BR’s identification evidence, the accused submits the ‘limitations’ in her evidence would not be ‘easily exposed’ to the jury. Moreover, it is submitted judicial directions will not ‘provide an antidote to prejudice’ in BR’s identification of the accused as the offender because the jury would need to ‘grapple’ with ‘abstract notions as to the dangers of identification evidence’.[162]
[162] A reference to Dickman 619 [57].
94The accused emphasises the ‘seductive quality’ of BR’s evidence, which it is said involves an ‘unqualified assertion’, presumably regarding the correctness of her identification of the accused as the offender, which ‘makes the task of the accused meeting that evidence impossible’.
95Finally, the ‘rogues gallery effect’ is relied upon as creating additional unfair prejudice by increasing the risk the jury would give disproportionate weight to the evidence, which could not be adequately addressed by judicial direction.
96Following the evidence given by DW, ET and D/Sgt Campbell on 22 March 2024, the accused filed further ‘addendum’ written submissions on 2 April 2024.[163] These submissions addressed the following issues:
(a) Summary of the further evidence given by DW and ET.[164]
(b) Further submissions on EA s137 arising from this additional evidence.
[163] Ex D3.
[164] The evidence of D/Sgt Campbell is not summarised in the defence further addendum submissions (Ex D3). It is unhelpful for the defence application.
97The accused’s further addendum submissions address two issues which arose during the voir dires conducted on 30 January 2024 and 1 February 2024; namely, ‘the genesis of [the complainants] knowing the offender’s name as [“James”] and the circumstances surrounding and the timing of the Facebook searches’.
98Regarding the ‘genesis’ of how ‘James’ and ‘James Low’ became known, the accused submits ‘there is no consensus in relation to how the name [“James”] became known by [ET] and [DW]’ and ‘no evidence in the Prosecution brief supports the evidence of [ET] that, she heard it from [DW] in the park’.[165] Moreover, ET ‘agrees she possibly was told by [DW] on another occasion’.
[165] I observe I have ruled what has been referred to as ‘the park conversation’ inadmissible in the accused’s trial. See DPP v Lowe (Ruling No 7).
99While this will ultimately be a matter for the jury to determine, in my opinion the prosecution evidence best supports a conclusion that the name of the offender being ‘James’ was first raised by ET’s mother and this was communicated to DW at some unknown time before the alleged offending was first reported to police on 30 March 2024. However, I accept the defence submission there is no evidence regarding how ET’s mother came to make this connection or whether the ‘James’ she is referring is the accused.[166] I note, ET’s mother is not a prosecution witness.
[166] I observe I have ruled all references to ‘James’ and ‘James Low’ as being the offender are to be removed from the prosecution evidence to be led at the trial. See DPP v Lowe (Ruling No 8).
100The accused submits ‘the genesis of the knowledge of “James” as the offender is critical to the assessment of the probative value’ of the picture identification evidence. It is said to be a ‘3rd hand hearsay assertion’ which has caused the police investigation to focus on the accused as being the offender without any proper basis. Framing the investigation around “James”, together with other contentious aspects of the evidence, is said to have had the effect of ‘substantially reducing the probative value of any identification evidence gathered’.
101The accused’s submissions on this aspect conclude:
The inescapable conclusion that is to be drawn is that the 3rd hand hearsay assertion has caused a chain of events to commence which have implicated the accused in the commission of the crime.
And
The further evidence on this discrete issue has significantly enhanced the submission of the likely risk (from an already moderate-high level) of ‘displacement effect’ on the photo board identification of both DW and BR.
102Regarding the ‘Facebook search issue’, the accused submits ‘it is clear from the totality of the evidence on the voir dire that, there is no knowing of (sic.) when the Facebook searches were conducted’ and in the absence of an ability to ‘forensically examine the devices which were utilised’ any conclusion as to timing would be entirely speculative. As I explain later, I disagree.
103The accused further submits, ‘There is now an irrefutable possibility that each of the photo board identifications by DW and BR have been affected by innocent infection or contamination’. As I explain later, I disagree. It is then submitted, ‘This aspect of the evidence[167] both lowers the probative value of the identification evidence and increases the likely risk of prejudice to the accused’.
[167] Presumably, this is a reference to the ‘displacement effect’.
104It is submitted, the ‘seductive’ quality of the identification evidence in this case, together with, what is said to be, the general unreliability of this class of evidence, combines to create a ‘high’ risk of prejudice to the accused. It is submitted the accused’s inability to get to the bottom of the genesis of the nomination of the offender as being ‘James’ interacts with the risk of a ‘displacement effect’ to produce a situation where the ‘danger of unfair prejudice is substantial and cannot be guarded against by directions’.
Prosecution submissions
105Following the evidence given by DW, ET and D/Sgt Campbell on 22 March 2024, the prosecution filed and served written submissions dated 9 April 2024[168] addressing all aspects of the defence applications for exclusion of the complainants’ picture identification evidence.
[168] Ex P10.
Probative value
106The prosecution does not accept the probative value of this evidence is ‘slight’. They submit the evidence of each complainants’ identification of the accused as being the offender has ‘significant probative value’.
107In relation to the two photo boards,[169] the prosecution submits they were ‘reasonably constructed’ because:
(a) The images were selected by an ‘automated process’ being ‘not manipulated by police’.
(b) The photograph of the accused was present with 11 other photographs.
(c) The photographs do not depict persons in police custody. The prosecution refutes the defence assertion the length of the accused’s hair gives rise to ‘an inescapable inference’ he was known to police.
(d) The photographs are all in colour.
(e) The photographs are of a ‘reasonable quality’.
(f) The photographs are the same size and depict the same profile being a ‘full face’ passport style photograph showing a front profile of each person.
(g) The photographs depict males ‘sufficiently similar’ in appearance to the accused, including their apparent race, hair[170] and eye colour and having a short hair style.
[169] The photo board shown to BR is Ex P1 and the photo board shown to DW is Ex P2.
[170] It is conceded photograph 10 on BR’s photo board has a different hair colour from the accused.
108Referring to the judgment of Maxwell P in THD v The Queen,[171] the prosecution submits, ‘whilst there are similarities and differences between the images on both photo boards, the differences are not “very distinctive” features “clearly differentiating” the accused from the other [persons depicted in the] photographs’.
[171] (2010) 200 A Crim R 106, 109 [11] (Maxwell P, Nettle and Neave JJA agreeing).
109The prosecution submits the evidence does not support the defence assertion that during the photo board identification procedures either complainant was ‘in a panicked, stressed state and concerned for their safety’.
110The prosecution relies on the statements of BR[172] and DW[173] in support of the submission that each complainant was given the usual warnings which are routinely given to witnesses as part of photo board identification procedures in this State. Including:
(a) The fact images are shown should not influence the witness’ judgement.
(b) It should not be presumed the accused was included in the photo board.
(c) There was no obligation to identify a person. However, the prosecution concede that DW gave evidence her understanding was that she had to select a person from the photo board.
[172] Ex P4.
[173] Ex P5.
111The prosecution submits, there was no undue delay between the alleged offending and the picture identification made by each complainant respectively. The complainants’ memories were ‘sufficiently fresh’, and the appearance of the accused was ‘not have changed significantly from the time of the alleged offending’.
112The prosecution refutes the defence submission that it can be inferred that BR and DW were ‘under significant amounts of stress at the time of making observations of the subject offender and consequently have an imprecise memory upon which to recall from’. The prosecution submits:
On the evidence, the memories of DW and BR are very precise on the issue of photoboard identification. DW and BR had a significant opportunity to observe the offender at the scene of the offending. The observations of DW and BR of the offender were “unhurried” observations, made in clear conditions, at close quarters and took place over a reasonably long period of time (i.e. they were not fleeting). Both DW and BR observed the offender prior to the offending (at the front door and in the back yard). BR was not intoxicated. DW had a significant opportunity to observe the offender prior to smoking cannabis. The person alleged to be the offender was not wearing a mask and there was ample opportunity for DW and BR to observe the face of the Accused. Upon the evidence, it was the face of the accused that was the key feature used by DW and BR to select the Accused in the photoboards.
113In support of the last sentence of this submission, the prosecution relies on the following evidence:
DW: I just identified the face. I just – this was a face I couldn’t forget.[174]
DW: The face was [“James Low”].[175]DW: That person “raped me”.[176]
BR: She ‘remembered the face’.[177]
[174] DW, 26-05-2023, T14.22–24.
[175] Ibid T14.26–27.
[176] Ibid T14.28.
[177] BR, 01-02-2024, T58.16.
114Moreover, the prosecution does not accept the defence submission that there are ‘reliability concerns’ regarding BR’s and DW’s identifications as detailed in the defence Outline of Submissions, dated 24 January 2024, at [33 xiii].
115The prosecution’s submissions emphasise the accused’s admission in his record of interview that he previously had been in a relationship with SF,[178] who lived at the address where the complainants first attended to obtain cannabis, and that he stayed there ‘off and on’ and ‘sometimes’.[179] Importantly, he also admitted ‘interacting with DW and BR on the date of the alleged offending’.[180] In fact, the accused admitted being the person who initially opened the door to the complainants at the address where they first attended to obtain cannabis on the day of the alleged offences, and that they ‘could’ve’ asked him ‘to purchase marijuana or cannabis’.[181]
[178] Record of Interview, conducted 9 April 2019, Qs&As 27 (deps p 354), 61 & 62 (deps p 359).
[179] Ibid Qs&As 65 & 66 (deps p 359–360).
[180] Ibid Qs&As 119–122 (deps p 366).
[181] Ibid Qs&As 130–132 (deps p 367).
116The prosecution also makes the important point that BR and DW ‘independently’ identified the accused as the offender after viewing different photo boards. As far as I can tell, there is only one other photograph that appears on both photo boards.[182]
[182] Photograph 11 on BR’s photo board and photograph 11 on DW’s photo board appear to me to be the same person.
117The prosecution submits the accused’s neck tattoo was not a ‘significant feature’ of BR’s and DW’s recollection of the offender. The prosecution accepts that, as a general rule, where an accused's photograph in a group of photographs stands out as being the only one with prominent features earlier described by a witness, ‘evidence of identification from the photo board may be improper’. However, the Director submits this is not the state of the evidence in this case. In this case, neither complainant refers to a neck tattoo when they select the accused. BR points to the accused’s photograph and says, ‘that one’, while DW refers to the accused’s face and the way it was ‘resting’.
118The prosecution’s submission continues with the observation that, whilst neck tattoos are visible in photographs 3 and 11 of BR’s photo board[183] and 4 and 11 of DW’s photo board,[184] they are only partially visible, and the image actually tattooed on each person is unidentifiable.
[183] Ex P1.
[184] Ex P2.
119Referring to the judgment of Spigelman CJ (with whom Simpson and Adams JJ agreed) in R v Shamouil,[185] the prosecution further submits BR and DW each delivered their respective identification ‘with confidence’ and each had a ‘clear and quite firm opinion’ about the identity of the offender.[186]
[185] (2006) 66 NSWLR 228.
[186] Ibid 235 [42].
120The prosecution highlights DW’s evidence in her VARE, which was conducted prior to the photo board identification, that she had not seen the man before, or since, but would know what he looked like if she saw him again.[187] Moreover, during cross-examination on the voir dire conducted on 30 January 2024, DW denied it was ‘possible she was mistaken’.[188] In re-examination, she gave the following evidence:
You've given evidence that you selected Photograph 4 from the photo board? —Yes.
Okay. And what was it about photograph 4 that made you select photograph 4? — Well, once I looked and saw that face again, I couldn’t miss that was him. I just knew that’s who had attacked me.
Okay, You use the word 'again' just in your answer then. You said, 'Once I looked and saw that face again', okay. When had you seen that face before looking at the photo board? — When he attacked me.[189]
[187] DW, VARE dated 31 March 2019, As 509–511 (deps p 116).
[188] DW, Voir Dire, 30 January 2024, T30.11–13.
[189] Ibid 39.20–29.
121BR also gave evidence she had not seen the man before the date of the alleged offending.[190] Her evidence during cross-examination at the voir dire conducted on 1 February 2024 was that she was ‘1000% certain’ the man in photograph number 3 was the man who assaulted her.[191]
[190] BR, Special Hearing, 10 July 2023, T???
[191] BR, Voir Dire, 1 February 2024, T45.3.
122Regarding the risk of ‘displacement effect’ operating on either complainant at the time of their identifications of the accused, the prosecution submits there is competing evidence given by BR and DW to the effect there was no operative displacement effect. Accordingly, the prosecution submits the Court cannot take into account the risk of displacement effect, because there are competing inferences, and the prosecution case must be taken at its highest.[192]
[192] The prosecution rely on R v Bauer (a pseudonym) (2018) 266 CLR 56, 91–92 [69] (the Court) quoted in Moreno [81].
Unfair prejudice
123The prosecution does not accept the Facebook search using the name ‘James Low’ occurred before the complainants’ photo board identifications were made. Accordingly, on the evidence, BR’s and DW’s memories were not contaminated at the time they viewed the photo boards and there was no operative displacement effect.
124Specifically, the prosecution relies on the following evidence:
(a) DW’s evidence that she remembers searching the name ‘James’ on Facebook but believed this occurred after she looked at the photographs shown to her by the police.[193]
(b) S/C Marsh gave DW an envelope with accused’s name on it on the 20 May 2021. This was the first time DW learned the accused’s full name. DW was only able to find the accused’s Facebook photograph using his full name. DW’s photo board identification was on the 18th of April 2019, prior to viewing the accused’s Facebook photograph, which must have occurred on or after 20 May 2021.[194]
(c) DW’s evidence that the Facebook search occurred after she viewed the photo board. Her evidence was as follows:
… In relation to the Facebook searching you gave the answer to the defence lawyer that, 'I wanted to see the face again'. Do you remember just giving that answer? — Yes.
When was the previous time that you'd seen the face? When was the other time you'd seen that face? — When he was on top of me.[195]
[193] Statement of DW dated 12 February 2024 (Ex P1 on voir dire conducted on 25 March 2024) [5].
[194] DW, Voir Dire, 25 March 2024, T45.20–29.
[195] Ibid T46.19–24, T48.24–30.
(d) At Defence Submissions No 3 [14] the defence relies upon ET’s recollection of events. She remembers a time when she and DW located the accused’s Facebook profile and the search term used was, ‘I think it would have just been “James”’.[196] According to the prosecution, ET is not certain when this happened.[197] The prosecution submit this is not sufficient to give rise to a risk of displacement and that the weight of the evidence supports a finding DW did not see a photograph of the accused until after she viewed her photo board.
[196] ET, Voir Dire, 22 March 2024, T25.18–19.
[197] Ibid T25.1–2, T34.12–14..
125Moreover, the prosecution notes the defence concession there is ‘no explicit suggestion of innocent contamination/infection’ of BR’s evidence.[198]
[198] Ex D2 [104], [106].
126The prosecution finally submits any prejudice caused by displacement or some other feature of the photo boards can be cured by judicial direction. The directions may also include reference to ‘the rogues gallery effect’, the fact the photographs are only two dimensional, the fact that a photograph does not, ordinarily, enable a witness to assess matters such as the height and build of the person who is being identified and any material discrepancy between the witness’s description of the accused given to police and his actual appearance.
127Finally, the prosecution refers to Moreno (a pseudonym) v The Queen (‘Moreno’)[199] where the Court said:
… the fact that there is a risk that displacement is involved in an identification does not necessarily mean that the probative value of the evidence will be reduced or that the evidence should be excluded.[200]
[199] [2023] VSCA 98.
[200] Ibid [76] (Priest AP, Niall and Kaye JJA).
Legal principles
128The legal principals to be applied in determining these applications are well settled and non-controversial. In Moreno[201] the Victorian Court of Appeal discussed at some length the principles to be derived from the authorities relevant to the application of s 137 in determining the admissibility of identification evidence.[202] It is convenient for me to set out at length those principles as stated by the Court:
[201] [2023] VSCA 98. See also Fowkes v The Queen [2023] VSCA 160 [64]–[69] (Emerton P, Priest and Kaye JJA); R v Lantjin [2023] NTSC 66 [17]–[18] (Barr J).
[202] Ibid [50]–[81] (Priest AP, Niall and Kaye JJA) (citations omitted) (original emphasis).
50The starting point for the application of s 137 is that the evidence is relevant to a fact in issue. That means the evidence, if accepted, could rationally affect the assessment of the probability of the existence of a fact in issue. Consideration of that question requires an understanding of the purpose for which the evidence is to be adduced. The evidence may be directly relevant to the proof of a fact in issue or may constitute a piece of circumstantial evidence which tends to prove a fact from which the existence of a fact in issue may be inferred. This latter category will fall to be considered as part of the evidence which, taken with other evidence, will enable the fact in issue to be proved.
51In IMM, the High Court held that s 137 required the court to accept the evidence at its highest without regard to the credibility or reliability of the evidence. That is because s 137 is concerned with the capacity of the evidence to affect the assessment of the probability of the fact in issue which can only be assessed on the premise that the jury accepts the evidence; if the evidence is rejected it could provide no basis for proving the fact in issue.
52 The High Court reconciled the requirement in s 137 to take the evidence at its highest with the concurrent obligation to assess the relative probative value of the evidence by explaining that the probative value will largely be a function of how it is said to be relevant: is it directly relevant or merely a piece of evidence which along with other evidence may be used to prove the fact in issue? Thus the Court said:
The use of the term ‘probative value’ and the word ‘extent’ in its definition rest upon the premise that relevant evidence can rationally affect the assessment of the probability of the existence of a fact in issue to different degrees. Taken by itself, the evidence may, if accepted, support an inference to a high degree of probability that the fact in issue exists. On the other hand, it may only, as in the case of circumstantial evidence, strengthen that inference, when considered in conjunction with other evidence. The evidence, if accepted, may establish a sufficient condition for the existence of the fact in issue or only a necessary condition. The ways in which evidence, if accepted, could affect the assessment of the probability of the existence of a fact in issue are various. Within the framework imposed by the statute and, in particular, the assumption that the evidence is accepted, the determination of probative value is a matter for the judge.
53 Although the High Court held that ‘no question as to credibility of the evidence, or the witness giving it, can arise’ that reasoning admitted of at least some qualification. First, the Court noted that if the evidence is ‘so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury’ it would not pass the test of relevance.
54 Second, the Court explained that there may be cases where ‘the circumstances surrounding the evidence’ may show that the probative value is very low. The point was illustrated by an example given extra-judicially by JD Heydon QC and addressed by the High Court in the following passage in IMM:
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.
55 It may not be easy to discern the demarcation between matters of reliability (which must be ignored) and the identification of circumstances surrounding the evidence that render it ‘simply unconvincing’. That difficulty is particularly acute in the context of identification evidence. As Gleeson CJ observed in Festa, for ‘any number of reasons’ evidence of observations may be made in circumstances that affect its reliability. Some of them may be a function of the particular occasion on which the observation was made (illumination, distance, weather); the nature of the thing observed (whether there was a previous association or whether the person was disguised or partially concealed); the manner in which the investigation is conducted; or the circumstances in which a representation of the earlier observation occurs (through the use of a photograph, suggestion, or whether it occurs in a police or court setting). Each of these matters may conventionally be described as going to the reliability of the evidence. Does it follow from IMM that each aspect must be ignored in the assessment of probative value?
56 In our view, in considering the probative value of evidence, at least insofar as identification evidence is concerned, it is legitimate, and necessary, to take into account the quality of the evidence, and that to do so does not breach the injunction in IMM that reliability and credibility must be put to one side.
57 Although it is important not to treat the ‘foggy night’ example as if it were a rule against which other examples must be tested and the organising principle that differentiates it from other matters affecting the reliability of the evidence is perhaps not easy to articulate, some observations may elucidate the nature of the qualification. First, the foggy night example is concerned with limitations on the observation, rather than on a later representation of what was observed. Second, the limitations form an integral part of understanding what the evidence, taken at its highest, is capable of conveying. Third, the limitations are an inherent feature or aspect of the observation that do not depend on the reliability of the person as a witness.
58 In R v Turnbull, the Court of Appeal of England and Wales considered the content of directions that should be given to juries where identification evidence is adduced by the prosecution. An important aspect of that decision was the discussion about the distinction between identification evidence and recognition evidence. Addressing these matters the Court of Appeal said:
Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them. Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence.
Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. All these matters go to the quality of the identification evidence. If the quality is good and remains good at the close of the accused’s case, the danger of a mistaken identification is lessened; but the poorer the quality, the greater the danger.
In our judgment when the quality is good, as for example when the identification is made after a long period of observation, or in satisfactory conditions by a relative, a neighbour, a close friend, a workmate and the like, the jury can safely be left to assess the value of the identifying evidence even though there is no other evidence to support it: provided always, however, that an adequate warning has been given about the special need for caution. Were the courts to adjudge otherwise, affronts to justice would frequently occur. A few examples, taken over the whole spectrum of criminal activity, will illustrate what the effects upon the maintenance of law and order would be if any law were enacted that no person could be convicted on evidence of visual identification alone.
59 The reference to the quality of the evidence is instructive because it underpins an important distinction for the application of s 137.
60In R v Dickman, the respondent had been convicted at trial of a serious assault by at least two assailants that occurred in the club room of the Hells Angels motorcycle gang. One of the assailants Ali Chaouk was identified, charged and underwent trial. The prosecution case against the respondent, as the second assailant, depended on identification by the victim.
61 The victim did not have any prior association with anyone involved in the assault including the respondent. On the night of the assault, and in order to gain entry to a nightclub, the victim had falsely told them that he was a member of the Hells Angels in Germany. When the truth came out that evening he was seriously beaten with a baseball bat. The incident had started in a nightclub where the victim first met the two accused one of whom was described as ‘the old man’ and the assault took place later that night when the offenders had taken the victim to the clubhouse. It was the prosecution case that the respondent was ‘the old man’.
62 The victim told police that the ‘old man’ was aged in his 50s or 60s, was 170 to 180 cm in height, white with tanned skin, he had a long beard, his hair was worn in a long ponytail, and he was wearing a green, grey and white ‘army’ style of jacket. During the investigation the victim was shown CCTV footage of the nightclub and had participated in the compilation of a ‘FACEview’ image to replicate an image of the offender. From the CCTV footage the victim identified a man called Cooper as the ‘old man’. Cooper had an alibi and was excluded from further consideration. In addition, he identified a number of other persons on the CCTV footage whom he said had been present or involved. He was also mistaken about these individuals.
63The victim returned to Germany. Sometime later, when he returned to Australia for the Chaouk trial, the victim was shown a photo board with 11 photographs. He was told by police that they suspected one of the people whose image appeared on the board. The victim agreed in cross-examination that he had selected the photograph of the respondent because his photograph bore the closest resemblance to his recollection of the ‘old man’.
64 The respondent was convicted. He successfully appealed to this Court on the ground that the photo board identification should have been excluded under s 137 of the Act.
65 In this Court, the majority held that the probative value of the identification evidence was so low as to be outweighed by the risk of unfair prejudice. That conclusion was based on five factors: first, the witness’s reliability was ‘significantly compromised’ in that he had wrongly identified Cooper as the ‘old man’, and wrongly identified other persons as being involved; second, there was a delay of almost two years between the assault and the photo board identification; third, the victim’s memory may have been contaminated by his earlier identification of Cooper and the possible ‘displacement effect’ of viewing the CCTV footage; fourth, he had been told that his earlier identification was mistaken and he had been given to understand that a photo of his assailant would be included in the photo board; and fifth, he would have been striving to find the photograph that best resembled his memory of the attacker.
66 Whelan JA dissented. However his Honour agreed in the assessment of the probative value of the evidence as low.
67 An appeal by the Director of Public Prosecutions succeeded in the High Court and the conviction was reinstated. In the course of its reasons the High Court noted that there was no dispute that the probative value of the evidence was rightly assessed by the trial judge was low. Importantly the High Court went on:
This was an estimate that did not depend upon his Honour’s assessment of [the victim’s] truthfulness or reliability as a witness. Assuming that the jury would accept the August 2011 identification at its highest, it was identification with limited capacity to rationally affect the assessment of the probability that the respondent was the ‘old man’. This is to recognise not only the limitations of photographic identification, but also that the August 2011 identification was evidence of [the victim’s] opinion that of the 11 men whose photographs were included in the array, the respondent's photograph bore the closest resemblance to his recollection of the appearance of the man who had assaulted him two years earlier.
68 As we understand that passage, the limitations taken into account by the High Court to assess probative value included the risk of suggestion or displacement, with the effect that the evidence went little higher than similarity rather than a positive identification. Importantly, in Dickman, unlike IMM, the quality of the evidence was not a function of factors that affected the initial observation (such as the foggy night) but included factors that attended the later process of identification.
69 A similar approach was taken by this Court in Bayley. In Bayley, this Court held that evidence of identification in a rape trial was ‘wholly unconvincing’ and ought to have been excluded under s 137 of the Act. The accused in that case was infamous and by the time of the particular trial had been convicted of a particularly shocking murder. After he pleaded guilty and was sentenced for the murder, he faced a number of charges in respect of separate incidents involving the victims of rape that had occurred many years earlier.
70 The victim in one of those incidents was a sex worker, who alleged that she had been raped by a client who drove a red Mini sedan. At the time of the attack she did not report it to police but she made a note of the event which described the car driven by the man, that he had ‘short, blonde spikey hair’ and ‘ranga arms’. She said that he was ‘evil eyed during the attack’. 12 years later, after Bayley was charged with the later, infamous, murder, the victim saw an image of the man accused of that murder and told police that ‘all of a sudden I’ve seen Adrian Bayley’s face and I knew, a hundred percent, that’s my guy’. By that time the victim knew that Bayley had been arrested for rape and murder.
71 Later, when shown a photo board by police, the victim picked a photo of Bayley saying that the person ‘definitely looks like No. 4’.
72 In allowing the appeal from the rape conviction, which was based in large part on that identification evidence, this Court referred to a number of problems with that evidence including that:
(a) the identification was made from a single image on Facebook;
(b) the photo was viewed 12 years after the attack;
(c) the victim knew that the person had been charged with the rape and murder; and
(d) the photo board identification was no more than evidence of similarity rather than identification.
73 This Court referred to a number of authorities that showed the law had long ‘set its face’ against identification based on a single photograph in a number of cases dealing with exclusionary common law rules.
74 This Court concluded that having regard to the infirmities to which it referred, the probative value of the identification evidence was very low, and there was a high degree of prejudice that could not be ameliorated by direction. Accordingly the Court held that the evidence ought to have been excluded. This Court went on to conclude that for similar reasons the verdict was unsafe and that the jury must have had a reasonable doubt as to the applicant’s guilt. The victim’s identification evidence was so weak that no other conclusion was reasonably open.
75Problems with the potential for a ‘displacement effect’ connected with photograph identification have long been recognised. In Alexander, Stephen J described the ‘displacement effect’, to which we have made reference, in the following terms:
Having been shown a photograph, the memory of it may be more clearly retained than the memory of the original sighting of the offender and may, accordingly, displace that original memory. Any subsequent face-to-face identification, in court or in an identification parade, may, on the identifying witness’s part, in truth involve a matching of the man so identified with the remembered photograph, which has displaced in his memory his recollection of the original sighting.25
76 The fact that there is a risk that displacement is involved in an identification does not necessarily mean that the probative value of the evidence will be reduced or that the evidence should be excluded.
77 In Peterson, the victim of a stabbing had made a statement that did not identify the accused. Later, after his suspicions were aroused by something he was told, he searched Facebook and found an image which he said was of the person who had stabbed him. This Court noted that the evidence was probative.26 This Court concluded that the frailties in the evidence and the criticisms of it, which were to the effect that the identification involved elements of ‘suggestion and suggestibility’, were capable of being evaluated by the jury with the benefit of proper judicial direction. The witness had ‘made an immediate and confident identification’ of the accused when he viewed the profile photograph on Facebook.
78 A comparison between this Court’s judgments in DPP v Hague and Dempsey (a pseudonym) v The Queen demonstrates the dividing line between factors that may legitimately be taken into account as part of the surrounding circumstances of the evidence and factors that undermine the credibility or reliability of the evidence. Hague was a case where the witness was standing close to the offender at the time of the incident and, a short time later, identified him in an identification parade, albeit that out of fear he did not tell police that he recognised the offender. The attack on the evidence took the form of an argument based on ‘inherent contradictions’ and ‘internal inconsistencies’ between various accounts given by the witness. This Court held that these matters were irrelevant to the assessment of probative value under s 137.
79 By contrast, in Dempsey, this Court held that in evaluating the probative value of that evidence, it was necessary to take into account the circumstances in which the witness observed the person who perpetrated the offence, and the precise nature of the identification undertaken by the witness when shown a photo board. In relation to the second matter, the Court noted the inherent limitations which are common to most photographic identifications and which are ordinarily the subject of an appropriate direction given to the jury. More specifically, the quality of the photo board identification was reduced because the witness expressed some qualifications to his identification of the photograph of the applicant which narrowed the possible ‘candidates’ to those depicted in four photographs, which (according to the witness) did not look like each other. He expressed some uncertainty in selecting the photograph of the applicant, stating that ‘I’m not sure’ and ‘Not one hundred per cent’, but said that the photograph of the applicant ‘Is more where I’m going with it’. This Court concluded that the judge’s assessment of this evidence as having high probative value could not stand and substituted a finding that it was of ‘moderate’ value.
80 As both IMM and Dickman make plain, s 137 does not require a court to treat as equally probative identification evidence based on an unhurried observation made in clear conditions at close quarters and a fleeting observation of a partially masked person in dim light. The latter may be relevant and acceptance of the evidence could rationally prove the existence of a fact in issue but not powerfully so. The latter may be ‘wholly unconvincing’ not because its reliability is liable to be attacked or undermined but because it is inherently qualified. Even though the ultimate import of both examples is that the witness identifies the person involved, the court cannot ignore the differing circumstances that do not turn on the credibility or reliability of the witness but which plainly affect the probative value of the evidence taken at its highest. Peterson does not suggest to the contrary.
81 Of course, to the extent that the matters said to go to the quality of the evidence turn on disputed questions of fact those questions must be determined by the trier of fact, and, at the stage of admissibility, it is necessary to take the evidence at its highest. The Court is not entitled to reduce the probative value of the evidence because there exists a viable competing inference that would undermine the evidence. In Bauer, the High Court rejected a submission that the probative value of opinion evidence was low because of the possibility that the evidence was based on contamination, concoction or collusion. The Court said:
In this context, reference to competing inferences is unhelpful, and likely to lead to error. Relevantly, the only sense in which competing inferences are of significance in the assessment of the probative value of evidence is in the determination of whether the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. As was established in IMM, that is a determination to be undertaken taking the evidence at its highest. Accordingly, unless the risk of contamination, concoction or collusion is so great that it would not be open to the jury rationally to accept the evidence, the determination of probative value excludes consideration of credibility and reliability. Subject to that exception, the risk of contamination, concoction or collusion goes only to the credibility and reliability of evidence and, therefore, is an assessment which must be left to the jury.
Application of the principles
Probative value
129I consider the evidence of BR identifying the accused’s photograph in the photo board identification procedure conducted on 15 May 2019 has high probative value. Likewise, I consider the evidence of DW identifying the accused’s photograph in the photo board identification procedure conducted on 18 April 2019 has high probative value. In the absence of any credible evidence of collusion or innocent contamination, the two identifications are independent and support each other.
130Importantly, the accused in his record of interview, in effect, confirms the accuracy of both identifications, since he admits he is the person who opened the door to the complainant’s when they came to the house at 4 PC.[203] He admits he was occupying those premises at the relevant time[204] and the complainants ‘could’ve’ asked him ‘to purchase marijuana or cannabis’.[205] Taking the Cown case at its highest, as I must, it is the person who first opened the door to the complainants at 4 PC who committed the alleged offences. Thus, it will ultimately be a question for the jury whether they accept the complainants’ evidence that the person who initially answered the door to them at 4 PC is the same person who committed the alleged offences or any of them.
[203] R of I Qs&As 130–131 (deps p 367). See also Defence Response to Summary of Prosecution Opening, undated but filed with the Court on 14 November 2023 (‘Defence Response’) [3]–[4] and Defence Submissions 1 [33(x)] where it is stated: ‘It is common ground on the evidence that the accused came into contact with the witness’s (sic.) [scil. the complainants] during the relevant time’.
[204] See Defence Response [1] where the accused ‘takes no issue’ with the Updated Summary of Prosecution Opening, dated 14 November 2023 (‘Prosecution Opening’) [1]–[5] which at [4] alleges the accused was living at the premises at 4 PC on 16 February 2019. See also Defence Response [9] where the accused ‘takes no objection’ to [43] and ‘takes no issue with’ [44] of the Prosecution Opening.
[205] R of I Q&A 132 (deps p 367).
131This is not a case like Dickman where there was a temporal and spatial disconnect between the observation of the ‘old man’ at the nightclub and the later observation of the perpetrator at the club house. In the present case, one or other or both complainants were constantly in the perpetrator’s presence, except when he left the second house in PC[206] to obtain the cannabis, which was after the alleged sexual offending against both complainants had occurred.
[206] A street in the town.
132Both complainants expressed a high level of certainty regarding their identification of the accused. There was no hesitation or qualification by either complainant.
133Moreover, I accept the prosecution’s submission that BR and DW had significant opportunities to observe the offender at 4 PC both before and after the alleged offending and later at the premises across the road. Both complainants had opportunities to make unhurried observations of the perpetrator who was in close proximity to them over a relatively lengthy period. There were no obvious limitations on their ability to observe the alleged offender’s face, other than the fact DW smoked some cannabis. However, as the prosecution points out, this was sometime after the alleged offending. BR, on the other hand, was not drug affected.
134I found BR and DW to be impressive witnesses. I accept both complainants’ evidence unreservedly. I do not accept either complainant had an ‘imprecise memory [from] which to recall’ the alleged offender’s facial features.
135Moreover, the matters raised in the intermediary report for BR dated 22 June 2021[207] and the addendum intermediary report for BR dated 22 May 2023[208] did not raise any concerns in my mind that whilst giving evidence she presented with ‘challengers’ to her ability to ‘concentrate, communicate and recall past events’. At the time of giving evidence on the voir dire on 1 February 2024, BR was aged 18.
[207] Ex D4.
[208] Ex D5.
136Likewise, the matters raised in the intermediary report for DW dated 24 June 2021[209] and the addendum intermediary report for DW dated 17 April 2023[210] did not raise any concerns in my mind that whilst giving evidence she presented with ‘challengers’ to her ability to ‘concentrate, communicate and recall past events’. At the time of giving evidence on the voir dires conducted on 31 January, 1 February and 22 March 2024, DW was aged 19.
[209] Ex D6.
[210] Ex D7.
137Whilst it may be submitted to a jury that each complaint’s initial description of the alleged offender is ‘vague’ and ‘inconsistent’ with each other and with other witnesses’ descriptions of him, this is not uncommon. Both witnesses were very confident in their identifications of the accused at the time of their respective photo board identifications.
138Having viewed the photo boards shown to BR and DW (and, for that matter, ET), I do not think that the accused, either in age or appearance, ‘stands out from the crowd’. I do not accept that in the photograph of him the accused’s neck tattoo is a very distinctive feature differentiating him from the others. Indeed, another person who appears on both photo boards and who is not dissimilar in appearance to the accused, appears to have a neck tattoo.[211]
[211] Photograph 11 on each photoboard.
139I am also of the view that, for the reasons adumbrated by the prosecution, the two photo boards are ‘reasonably constructed’. D/S/C Stubbins gave evidence regarding the automated nature of the process used to produce the photo boards and the source of the photographs used to construct then, which includes driver licence photographs and photographs generated from the LEAP[212] system, which includes photographs of people reporting crimes. It is because of this evidence that I consider there is little risk the jury would deduce from the accused’s photograph showing him with longer hair than he has in the record of interview that he was previously known to police and this in some way weakens the probative value of the complainants’ identifications.
[212] Law Enforcement Assistance Program.
140I do not consider 89 days in BR’s case or 62 days in DW’s case between the alleged offending and each photo board identification constitutes an ‘appreciable delay’ which significantly adversely impacts on the probative value of either identification.
141Nor do I accept there is ‘a body of evidence’ from which it can be inferred that each complainant was ‘in a panicked, stressed state and concerned for their safety’ at the time the photo board identification procedures were conducted. Each complainant was in the company of a parent[213] and a least one female police officer[214] in their own home.
[213] BR’s mother was present at the time she identified the accused. DW’s father witnessed her police statement at the time.
[214] D/Sgt Campbell (BR) and/or D/S/C Stubbins (DW).
142Following the evidence given at the voir dire conducted on 22 March 2024, I am satisfied on the whole of the evidence that the first Facebook search conducted by DW and ET using the search term ‘James’ occurred after the alleged offending conduct and before DW’s VARE was conducted on 31 March 2019. I am further satisfied on the whole of the evidence this search did not reveal anything concerning the accused.
143Moreover, I am satisfied on the whole of the evidence that the second Facebook search conducted by DW and ET using the search term ‘James Low’ occurred after DW’s photo board identification of the accused on 18 April 2019 and after the provision to her of the transcript of her VARE by police on 20 May 2021. Accordingly, I am satisfied there is no risk of a displacement effect arising from the Facebook searches operating on DW’s mind at the time of her photo board identification of the accused
144So far as any displacement effect arising from the Facebook searches operating on BR’s mind at the time of her photo board identification of the accused, I am satisfied on the whole of the evidence BR was never made aware of the Facebook searches conducted by DW and ET or of any information concerning the accused derived from such searches. Accordingly, I am satisfied there is no risk of a displacement effect operating on BR’s mind at the time of her photo board identification of the accused.
145Nor do I consider there is any significant risk of a displacement effect operating on the complainants at the time of their respective photo board identifications arising from the admitted fact they both came into contact with the accused ‘during the relevant time’. It would be an extraordinary coincidence if both complainants have correctly identified the accused as the person who opened the door at 4 PC, whilst independently displacing their individual memory of the accused for the offender.
146I am not satisfied that any ‘inconsistencies’ between the various descriptions of the alleged offender and the accused or any ‘reliability concerns’ are sufficient to cast serious doubt on the photo board identifications and thus weaken their probative value to any significant extent.
147I am also not satisfied that any aspects of the manner in which Victoria Police has investigated the present alleged offences has had the effect of reducing the probative value of BR’s or DW’s identification evidence. Specifically, I do not accept that either complainant’s identification of the accused as the alleged offender is in anyway the result of suggestion by investigating police or has been the result of a ‘self-fulfilling prophesy’.
148Having considered the accused’s criticisms of each complainant’s picture identification evidence individually, I am also of the opinion that both complainants’ identification of the accused has high probative value taking into account all of the accused’s criticisms together.
Unfair prejudice
149I do not accept the accused’s submission that there is a danger of unfair prejudice to the accused in admitting BR’s or DW’s picture identification evidence because the jury may illegitimately use the evidence by giving it a weight that is disproportionate to its true value.
150As earlier noted, D/S/C Stubbins gave evidence regarding the automated nature of the process used to produce the photo boards and the source of the photographs used to construct then, which includes driver licence photographs and photographs obtained from the LEAP system. It is because of this evidence that I consider there is little risk the jury would deduce from the accused’s photograph showing him with longer hair than he has in the record of interview that he was previously known to police. I do not accept there is any ‘rogues gallery’ effect at play in this case.
151In my opinion, any deficiencies or limitations in the complainants’ identifications of the accused can be fully exposed to the jury and can be the subject of strong judicial directions in accordance with the Jury Directions Act 2015 s 36.[215] This will significantly reduce the risk of the jury giving the evidence inappropriate weight. Moreover, in the present case, I do not consider the identification evidence has a particularly ‘seductive quality’ that cannot be cured by judicial directions.
[215] See also EA a 115(7).
152Finally, given the rulings I have made regarding the inadmissibility of the ‘park conversation’[216] and a requirement for the prosecution to remove certain references in the pre-recorded evidence to the words ‘James’ and ‘James Low’,[217] I do not consider there is now any need for the accused to expose to the jury ‘the genesis of who nominated the offender to be [“James”]’, which, it is said, prejudices the accused. If the defence consider there is a need in the trial to pursue the origin of the nomination of ‘James’ as being the alleged offender, that would be a forensic choice which cannot be determinative of the admissibility of the complainants’ identification evidence.
[216] DPP v Low (a pseudonym) (Ruling No 7).
[217] DPP v Low (a pseudonym) (Ruling No 8).
Conclusion
153Accordingly, I find the probative value of each complaints’ picture identification evidence is not outweighed by the danger of unfair prejudice to the accused. It is for these reasons that I dismissed each of the accused’s applications to exclude this evidence.
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