Director of Public Prosecutions v Smith (Ruling No. 1)
[2021] VCC 1544
•30/07/2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01423
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JESSE SMITH |
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JUDGE: | RIDDELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11/05/2021 and 12/05/2021 | |
DATE OF RULING: | 30/07/2021 | |
CASE MAY BE CITED AS: | DPP v SMITH (Ruling No. 1) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1544 | |
RULING
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Subject:CRIMINAL LAW – Admissibility of Identification Evidence
Catchwords: Application to refuse to admit evidence of identification – Photoboard identification – Dangers of identification evidence – Array of images said to be flawed – Probative Value – Unfair Prejudice
Legislation Cited: s. 198B Criminal Procedure Act 2009 – s.137 Evidence Act 2008
Cases Cited:R v Carusi (1997) A Crim R 52 – Pitkin v R (1995) 130 ALR 35 – Blick v R (2000) 111 A Crim R 326 – Domican v R (1992) 173 CLR 555 – R v Nguyen [2003] NSWCCA 1068 – THD v R [2010] VSCA 115 – R v Blick [2000] NSWCCA 61 – R v Fisher [2001] NSWCCA 380 – Knight v Brown (2004) 183 FLR 135 – IMM v The Queen [2016] 257 CLR 300 – R v BD (1997) 94 A Crim R 131 – Papakosmas v The Queen (1999) 196 CLR 297
Ruling: Composition of photo board fair – Photoboard Identification Admissible
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr N Batten | Office of Public Prosecutions |
| For the Accused | Mr M Page | David Barrese & Associates |
HER HONOUR:
Summary
1This matter has been listed before me for Case Conference under the Covid Emergency Case Management protocols. The parties seek that I make pre-trial rulings on several issues.
2Jesse Smith is charged on Indictment with a number of offences committed against his former partner, Ms Missy Ainge[1]. Charges 1 and 2 are charges of Persistently Contravening a Family Violence Intervention Order (FVIO).
[1] A pseudonym.
3Charge 3 is a charge of Burglary and Charge 4 of Arson relating to a fire at her home. Charge 5 is a charge of Contravene Family Violence Intervention Order intending to cause harm or fear for safety, namely by attending at the complainant’s address at the time of Charges 3 and 4.
4This ruling concerns the admissibility of a photoboard identification. It relates to evidence relevant to Charges 3, 4 and 5 namely burglary and arson and the associated contravention of the FVIO.
5Specifically, Mr Page on behalf of Mr Smith objects to a photoboard identification made by witness Ned Sharkey. He submits that the composition of the photoboard made it inevitable that the accused’s image would be chosen, given only one other image carried distinctive features described by the witness. In the face of a photoboard identification with that inherent flaw, Mr Page submits the identification evidence is weak and outweighed by the danger of unfair prejudice. As such he argues it must be excluded pursuant to s.137 Evidence Act 2008.
6The Prosecution resists the application to exclude that evidence.
7I will return to the parties’ submissions in due course.
Background
8Mr Smith, aged 22, and 26 year old Ms Ainge were in an intimate relationship for approximately 2 and a half years, commencing in 2017. From approximately September 2017 the accused commenced to live with the complainant at her home at Wodonga.
9On 13 October 2019 the accused and complainant had an argument during which he became enraged. Ms Ainge left the house. The accused sent her abusive and threatening text and phone messages and threatened to ‘smash up her stuff’ and to ‘smash up the house.’ He proceeded to damage items in her home.
10The complainant in her statement about this offending stated that the accused had been violent towards her on other occasions. When interviewed about the October offending, the accused admitted that some months earlier he had punched a hole in the wall and thrown a television remote at the wardrobe causing a crack in it.
11The accused pleaded guilty to offences of threat to kill and intentionally damage property relating to the October offending in the Magistrates Court on 14 October 2019.
12I understand the Prosecution will seek to lead the evidence of previous violence including the October 2019 offending, as evidence of tendency.[2]
[2] Tendency Notice dated 2 February 2021 has been filed with the Court. I have not heard any argument regarding this evidence at this stage.
13Police took out a Family Violence intervention order on behalf of the complainant and her 3 year old daughter in October 2019. During the period between 17 November 2019 and 8 January 2020 the accused contacted the complainant on Facebook messenger several times in contravention of that order. Charges 1 and 2 of Persistently Contravene Family Violence Intervention Order are in relation to those matters. The accused has indicated an intention to plead guilty to those charges.
Charges 3 & 4 – Burglary and Arson – and associated Charge 5 – Persistently Contravene FVIO
14On New Year’s Eve 2019 the complainant and accused were both at a bar Beer Deluxe in Kiewa Street, Albury. The allegations concerning that night are as follows.
15The complainant was present with two female friends. The accused was present with his friends. At times the complainant and accused interacted. The accused however repeatedly became angry, calling the complainant a ‘slut’ and telling her to ‘fuck off’. She was trying to appease him and keep the peace, including at one stage kissing the accused.
16The accused sent various messages to the complainant on Facebook Messenger throughout the night. Those messages are angry, abusive, jealous and threatening in nature. They included a message “Dog cunt. I hate you so much. I’ll be at your house.” and “Slutv. Slutv. Slutv. Your dead. Ganna die.” and “Ganna get your throat slit like the cow u are.”
17The complainant noticed, and the accused showed her, that the accused’s phone had a cracked screen. This was apparently smashed by him because the complainant would not respond to his text messages.
18At some time between 2.27am and 2.47am, the prosecution allege that the accused said to the complainant “I’m going to fucking murder you.” and later, “I’m going to fucking kill you cunt.” The complainant’s friend Jane[3] told the accused to “Fuck off”.
[3] A pseudonym.
19The complainant spoke to security, telling them she had a Family Violence Order against the accused. Security looked for the accused but could not find him.
20CCTV footage shows the accused left Beer Deluxe around 2.47am.
21At around 3.30am the complainant and Jane left the venue, picked up by the complainant’s stepfather. Not long after leaving, the complainant received a message indicating that her house was on fire.
The Fire
22At around 3:30am neighbours were woken by the noise of Ms Ainge’s house burning and called ambulance and police.
23The house was completely destroyed by the fire. Fortunately no person was present.
24The conclusion of the forensic officer who examined the scene was that the fire started in the bedroom of the complainant, and that the fire was caused by ignition of combustible material likely bedding, and probably lit by a match or cigarette lighter.
Identification Evidence
25Andrew Seaman who was the partner of the accused’s mother, Amanda Paton, was on a video chat with Ms Paton when the accused arrived home at around 4:00AM on New Year’s Day. He told police that the next day Ms Paton told him that Jesse caught a taxi which dropped him off a couple of blocks away from the complainant’s home.[4]
[4] I have not heard any argument about the admissibility of portions of the evidence of Mr Seaman and Ms Paton at this stage.
26Police made enquiries of Albury Taxis and identified what appeared to be a relevant fare, with driver 42 year old Ned Sharkey.
The Photoboard Identification
27In a voir dire before me, Mr Sharkey gave evidence that he was contacted by police and asked to attend the Wodonga police station. He did so on the same evening, 16 January 2020. At the police station he was spoken to by DLSC Andrew Leonard.
28DLSC Leonard states that he had a conversation with Mr Sharkey and ‘explained the reason behind his attendance.’ He had already prepared a photo board with the accused’s photo at position 9.
29He says –
“I noted that Sharkey commented that he knew who it is. I immediately asked him, 'What, you know him?' to which Sharkey stated, 'No, don't know him, but I remember him. He was odd, had a lip ring, walked like he was on a mission.' He further stated, 'I remember thinking that he was going to rob me.' I understood this as the reason Sharkey remembered the male.”
30Mr Sharkey had little recall of this conversation with DLSC Leonard, other than to say he was directed to New Year’s Eve/Day, and he was asked “basically have a look and see if I could - yeah, identify anyone um from - from that - from that night, yeah.”
31Mr Sharkey was given the usual preamble prior to being shown the photo board.
32On viewing the photoboard he selected Photo 9 immediately, stating –
“Yep, that's the guy there.' I remember him from the taxi, he had a lip ring and he seemed, well, odd. The way he flagged the cab down and the way he behaved made me think he was on a mission. As such, I remember him clearly.”
33He signed a statement to that effect at 7:25pm on 16 January 2020.
34Immediately following that procedure, he made his substantive statement detailing the events of New Year’s Day. He signed that statement at 8:44pm on 16 January 2020.
Statement of Ned Sharkey
35According to the substantive statement of Mr Sharkey at around 3am in the early hours of New Year’s Day he filled his taxi with petrol in Wodonga Place, South Albury, about 1.4 km away from Beer Deluxe.
36Mr Sharkey turned into Ebden Street heading East. Ebden Street and Kiewa Street intersect. He had not travelled very far when he was flagged down on Ebden Street by a young male. The Prosecution allege this young male was the accused.
37In his statement Mr Sharkey described the young male as follows –
The male was around 22 years old and of thin build. He would have been around 175 cm tall with light brown hair. He was wearing t-shirt and trousers, but I can't be sure what colour. It was his face that I really remember now.
I had never met this male before.
It was 3.01am when I turned on the metre.
38It is apparent from his statement that Mr Sharkey had a good recollection of this trip. He described the route and the demeanour of the young male in detail. He described the young male as being alternatively overly-appreciative and then aggressive or sharp with him. Mr Sharkey had concerns he would not be paid for the fare.
39He says when the young male got into the car and the internal light came on he ‘had a pretty good look at him.’
40The male asked him to go to the APCO service station in Moorefield Park Drive, West Wodonga, or ‘as far as $20 would take him.’ Near the intersection of Moorefield Park Drive and Mayfair Avenue in West Wodonga, the young man told Mr Sharkey to pull over, and he exited the vehicle. That location is approximately 250m from the home of Ms Ainge.
41Mr Sharkey stated that when the light came on when the door was opened as the young male exited the vehicle, he got another look at him. He states –
When the light went on I got a good look at his face and what stood out was the lip ring in his bottom lip, to the left of centre I think and I think he had an eyebrow ring. His hair was slicked across, pretty well looking for going out. I remember his nose and mouth, they didn't stick out but I can still remember them. It's just something I do as part of my nature.
42Mr Sharkey also described the young male as being alcohol affected, and having a phone which he was waving around and which Mr Sharkey observed to have a cracked screen.
Committal
43At the Committal hearing conducted on 28 October 2020, Mr Sharkey was cross examined.
44Inter alia he stated that he had only been a taxi driver for approximately 10 days as at New Year’s Day 2020.
45Between the fare on New Year’s Day and making his statement he had continued working and estimated he had taken 50-80 fares. He agreed he had not seen the same young male again.
46Under cross-examination he gave the following evidence –
What you remembered about him as being particularly distinctive was a ring he had in his lip, that's right? --- I did.
When you're describing him you described his facial, remembering his face but other than the lip ring there's nothing particularly distinctive you noted in your statement about his face, that's right? --- No. That is correct.
And you describe his hair as being light brown and swept across like he'd just been going out? --- Yes, that's correct.
Even as you sit there that's the best you can do in relation to the identification or the description of him? --- That's (indistinct).
47And later
So the only person who vaguely fits the description you give on the photo board that you're asked to choose from is pretty much the only person who has anything, features similar, that's right? --- Yes.
Voir Dire
48In the face of the Defence application to exclude the photoboard identification, Mr Batten on behalf of the Prosecution submitted that I should first view the original photoboard.
49Further he submitted that answers from the committal on which the Defence sought to rely were equivocal and that I should hear evidence from Mr Sharkey.
50In addition, he foreshadowed that it may also be useful for me to hear evidence from DLSC Leonard as to the composition of the photoboard and reason for conducting that procedure prior to taking a written statement from Mr Sharkey.
51Mr Page agreed to that course, and effectively the application for that procedure is his under s.198B Criminal Procedure Act 2009.
52It was my view that in the interests of justice I should grant the applications pursuant to s.198B.
Original Photoboard
53I have viewed the original photoboard.
DLSC Leonard
54Ultimately by agreement between the parties DLSC Leonard was not called to give evidence.
s.198B – Evidence of Mr Sharkey
55On 11 May 2021 Mr Sharkey was cross examined via remote link before me. He gave the following evidence in chief –
When you were shown those photographs did you look at each of the images in the - when you were first shown them and before you pointed anyone out did you look at each of the images? --- No.
All right? --- I went - I - I went across the images and selected him straight away.
How long did it take you to select No.9? --- Not long at all.
Why did you pick out image no.9? --- Because, as I said in my statement I got a very good look at him, it's in my nature, and I know that no.9 was the person who hopped in the cab that night.
All right. When you say it's in your nature, what are you talking about? --- I'm very good at recognising and remembering people.
Okay. When you say you had a good look at him, what do you mean by that? --- I mean before he hopped, came in the cab, I was able to see him, while we were at the lights, I was able to spend time talking to him, that's what you do as part of the safety, and when he hopped out of the cab and gave me the money I got a good look at him again. That's what I mean.
Right. Okay. Were there any features of the image shown in which nine are shown that were of particular significance to you? --- Um, I remembered his, ah, mouth and his nose and just the shape of his face. It is hard to describe, but that it, that, that, that is what I remember and that is who hopped in my cab that night. I'm absolutely a hundred per cent.
And when you looked at image 9 did you see a lip ring shown? --- Yeah, I did see a lip ring.
Yes. Did you? --- But.
Did you? --- That, that - sorry.
You go on? --- That wasn't the, a distinguishing feature, I just remembered the face and that's what I went on. But as I said, it didn't take me long.
Did you look to see if any of the other images in the array of photos showed a person with a lip ring? --- No.
The hair shown in the individual in image 9 was that of any significance to you in picking out that image? --- Um, apart from the sort of colour, no, 'cause he had a different hairstyle that night.
All right. What do you say as to the difference in his hairstyles between what's shown in image 9 and the hairstyle of the person that travelled in your taxi? --- Okay. The image in, the photograph in image 9 shows it little bit roughed up and that sort of thing. He had it sort of gelled and done as if he was going out, it was slicked across.
56Under cross examination he gave the following evidence –
I remembered his hair, yeah, I remembered that he had a lip ring and his hair was well done. I don't know what else I was supposed to describe. He didn't have a big nose, he didn't have eyes that are amazing. That is what I remember about him.
AND
So when you look at the board, the two distinguishing features are the hair and the lip ring, and No.9 is the only person who has that combination of features. That's right? --- Yeah, well I have to, I have to agree with you, but that's not the reason I chose him.
AND
Yes? --- I chose him because that's the guy who had hopped in my cab that night. And that needs to be very clear. I know where you're coming from, but that's, that's why I've chose him. And I'm absolutely a hundred per cent. And I need to make that clear.
Okay. So on the basis of just nothing distinctive about him and putting aside the swept hair and the lip ring, you say you are a hundred per cent certain that it's him? --- Yes I am.
Okay? --- Absolutely.
AND
Were you working from your memory, were you at all influenced by what you'd seen on the photo board? --- No, I remember it clearly, um, even though I hadn't been driving taxis long, um, I'd spoken to my colleagues that had and they said to be very wary on people that don't give an address when they're going somewhere, and I'd only had two other cases where that had happened in the short time I'd been driving taxis and they did a runner. So that's why heightened my senses that night and that's what I remember, I remember that distinctively because, as I said in my statement there was no address, he wanted to go to an APCO service station, the potential was, I'm not saying it would've happened, but the potential was we'd gone to the service station or done a runner and that's what I remember about this unique case.
AND
What were you drawing on to give that description? --- Basically I remember the defendant and I remember that particular journey in the cab very clearly, as I've said, because of the fact that there was no address and I, I was worried about, I, I speak to my customers that I pick up, I get a rapport, it's a security thing.
AND
I was shown the - shown the photo board.
Yes? --- I happened - happened to glance down, but do you want me to describe it? And I - I wasn't looking across the page. I was looking down the page. I came down the page and that is when I viewed No.9 and I knew straight away that was the person that hopped in my cab that night and asked me for a lift, okay. Okay? Yeah.
AND
He just asked me to um basically have a look and see if I could - yeah, identify anyone um from - from that - from that night, yeah.
AND
I was told New Year's Eve, yeah.
AND
I'm pretty - pretty sure it was just anyone that you've picked up in that - yeah, that night, yes.
And I - I only - I only had a few fares that night.
Admissibility of the Photoboard Identification
57There is no dispute between the parties as to the state of the law. Evidence of identification from photographs is relevant and prima facie admissible.[5] Nonetheless it is evidence which may be attended to by consequential dangers and unfairness to an accused.[6]
[5] R v Carusi (1997) A Crim R 52
[6] Pitkin v R [1995] HCA 30; (1995) 130 ALR 35,
58The application by Defence is that I should refuse to admit evidence of the photoboard identification made by Mr Sharkey, pursuant to s.137 Evidence Act 2008. That section reads –
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.
59In an application to exclude such evidence pursuant to s.137 I must therefore assess the probative value of the photoboard identification. I must then determine any unfair prejudice which may be caused to the accused by admission of the photoboard identification, and undertake the balancing process of assessing one against the other. If in my assessment the probative value of the evidence is outweighed by the danger of unfair prejudice, then I must refuse to admit the evidence. Section 137 is mandatory in its terms.[7]
[7] Blick v R (2000) 111 A Crim R 326 at 333
60Given the known dangers and seductive nature of identification evidence, clear and detailed directions must be given to a jury where such evidence is admitted, even where there is other evidence which could inculpate the accused.[8] In assessing the danger of unfair prejudice, I must take into account any directions which could be given to guard against such prejudice to the accused.
[8] Domican v R (1992) 173 CLR 555
61If admitted, the photoboard identification will be a piece of circumstantial evidence against the accused.
Defence Submissions
62Mr Page on behalf of the accused submits that I should refuse to admit the evidence of the photoboard identification. The basis of the objection is that, according to Mr Sharkey’s statement, and confirmed in his oral evidence, the only features which stood out to him about the male he observed in the taxi were the lip ring and swept hair. Mr Page submits that the composition of the photo board was such that it was inevitable that the accused’s photograph would be selected. In this submission he relies on the fact that only one other person on the photoboard had a lip ring and that person has distinctively different hair.
63He submits that the probative value of the photoboard identification in those circumstances is low. He relies on the cases of R v Nguyen[9], THD v R[10] and R v Blick[11] in support of his argument. In each of those cases, the fairness of the array of photographs or persons in an identification parade was in issue. Where an identifying feature was particular to the accused and therefore made the accused ‘stand out from the crowd’ the probative value of the identification was seen to be low, leading to its exclusion.
[9] R v Nguyen [2003] NSWCCA 1068
[10] THD v R [2010] VSCA 115
[11] R v Blick [2000] NSWCCA 61
64He submits that the danger of the unfair prejudice regarding identification evidence is that it is known to be seductive for a jury and they are likely to accord it too much weight.
65Mr Page submits that given the known dangers around identification evidence, in particular in circumstances where the process or nature of the identification is flawed, the risk of unfair prejudice to the accused means I must exclude the photo board identification.
66He also points to the fact that the accused was not arrested until the day after the photo board identification was conducted, and therefore the jury may speculate as to why police had possession of his photo.[12]
[12] This did not amount to any application pursuant to s.115 Evidence Act 2008, and I do not understand that section to be relied on.
Prosecution Position
67Mr Batten on behalf of the Prosecution made the following submissions.
68Firstly, he conceded that it was less than ideal for DLSC Leonard to have compiled the photoboard without first having asked the witness for a description. Had he done so and the witness described the lip ring and hairstyle as being distinctive, that may have led to greater consideration of the images used.
69He conceded that in the event that a witness describes a distinctive feature it may be preferable that all (or none) of the images depict that feature.
70However, he submits that the composition of the photoboard in this case is fair, and that the photoboard identification made by Mr Sharkey has high probative value and should be admitted.
71He submits in assessing the probative value of the identification, I should take the evidence at its highest. He submits I should consider the surrounding circumstances which may add to or detract from the probative value, such as the quality of Mr Sharkey’s opportunity for observation, any limitations in the photographic identification and the precise nature of the identification made.
72He submits that in assessing the probative value of the photoboard identification of the accused I should take into account other evidence in the prosecution case.
73The principles applied in older decisions such as Blick, R v Fisher[13] and Knight v Brown[14] where photoboard identifications were excluded remain relevant to the application of s 137 as I must assess it in light of the High Court decision in IMM v The Queen[15] and cases which follow.
[13] R v Fisher [2001] NSWCCA 380
[14] Knight v Brown (2004) 183 FLR 135
[15] IMM v The Queen [2016] 257 CLR 300
74However, although Mr Batten concedes that an unfair array of images where the accused stands out may mean the identification has little probative value as compared to a real danger of unfair prejudice, it is not in all cases that an image of a suspect with distinctive features results in exclusion of the identification.
75He submits consideration of the surrounding circumstances as outlined above, are all part of the assessment of probative value. He submits in this case when I undertake that process I should conclude that the photoboard identification has high probative value.
76Further, that the risk of unfair prejudice to the accused is low in that any limitations in the selection of photos will be exposed to the jury who will be able to readily understand and assess them. In addition, a detailed warning will be given about the potential unreliability of identification evidence.
Analysis
77In assessing the probative value of a photoboard identification I agree that I must consider the surrounding circumstances of the identification. That includes the opportunity for observation. It includes necessarily making a judgment as to the quality and fairness of the photoboard itself, as well as the surrounding procedure undertaken and the manner of selection by the witness.[16]
[16] See for example analysis of Trial Judge as referred to by Maxwell P in THD
78In THD v R Nettle JA observed that the question whether the photoboard was unfair is “essentially one of fact and degree, and thus of judgment”.
Opportunity for observation
79I accept that Mr Sharkey had never before met the male who travelled in his taxi. I accept he had not seen him since New Year’s Day. The photoboard identification was not made for just over 2 weeks. In the interim he had taken 50-80 fares.
80Mr Sharkey had good opportunity to make observations of the male. He says he observed him before he entered the cab as he flagged it down. He did a u turn to collect him. He observed him as he entered the cab, during the trip in particular when stopped at the lights, and when he opened the door to exit the taxi. The trip lasted approximately 12 minutes.
81Mr Sharkey said he did not have many fares that night.
82He gave evidence about his own nature and manner of observing people.
83He gave evidence about being warned of the risks when a passenger doesn’t give an address. He stated that the fact the male asked to be delivered to a petrol station ‘or as far as $20 will go’ made him alert. He suspected the male may ‘do a runner’ and not pay him. For that reason, he deliberately tried to build rapport by engaging in conversation.
84He was able to describe the male’s approximate age, build, height, clothing, and his face. He described his manner of speech and that he believed he was alcohol affected. He detailed the fluctuating conversation between pleasant and agitated, and that this plus the lack of address put him (Mr Sharkey) on notice that he was at risk of not being paid.
85He described the interaction over money, and in particular that when they pulled up at the APCO service station the male opened the door and the light came on. There was a discussion about the fare. Mr Sharkey made observations of cash in the male’s wallet as he took money out to pay him. To his surprise there were a number of notes including $50 notes. He recalled being paid $20 and a $10 tip.
86Mr Sharkey stated that when the male was getting out he got a good look at his face. At this point he described the lip ring, the slick hair and that he may have had an eyebrow ring.
87The opportunity and reasons for Mr Sharkey to make observations of the male make that part of the identification strong. Many identification cases involve a witness making an identification when an offence is being committed – namely in a time of stress and often with very limited opportunity. Alternatively, cases involve identifications occurring in innocuous circumstances where there is no real reason for a witness to take note or recall. Mr Sharkey’s identification sits somewhere between these for the reasons he outlined – namely the male’s demeanour and conversation made him suspicious to a point of deliberately engaging with and observing him. In my view that makes the ‘incident identification’ a strong one.
Composition and Fairness of the Photoboard
88The photoboard was compiled by DLSC Leonard. He says he ‘matched the suspect with 11 other similar photographs.’ The photoboard contains 12 images of young men of Caucasian appearance with similar colour skin tone.
89They look to be of similar in age to the accused. The men at positions 8 and 11 may be slightly older.
90All have light brown to dark brown hair, in various styles. The colour of the accused’s hair is somewhere mid-range. The length of his hair is somewhere mid-range. Some of the men, including the accused, have some very light facial stubble or facial hair.
91None appear to have an eyebrow ring.
92Two of the men have lip rings, one being the accused and the other at position 1. Both lip rings are in the same position, on the left area of the bottom lip. The lip rings are somewhat more obvious in the original photoboard than in a colour copy, however even on the original they do not stand out in an immediately obvious way. As much was conceded by Counsel in his exchange with me when I was provided the original photoboard –
Her Honour: The lip ring, although it’s there, you’ve got to look for it. It’s not a particularly stand out feature, like for example a goatee.
Mr Page: No, I concede that Your Honour.
93In my assessment, the array of images contained in the photoboard are similar to the accused. No one image stands out any more than another. The lip ring, although a feature of difference, does not leap out. To use the words of Maxwell P in THD v The Queen when His Honour distinguished the cases of R v Fisher, Knight v Brown and R v Blick –
Having viewed the photo montage, I do not think … that the applicant, either in age or appearance, ‘stands out from the crowd’. In that crucial respect the present case is quite different from the three cases referred to where there was a very distinctive feature differentiating – and clearly differentiating – the person identified from those others.
94Although it may have been preferable for all males to have a lip ring, there is no evidence as to how easily that could have been achieved, while maintaining similar age, ethnicity and hair style. It may have been easier to photo-shop out the lip ring. However, the inclusion of the lip ring on two images in this photoboard is not so distinctive as to make this identification inherently weak. It is a subtle feature on those faces.
95In my view the composition and array of images in the photo board is a fair one.
Reasons behind Mr Sharkey’s selection
96On the evidence of Mr Sharkey, it was not the lip ring which prompted him to select the image of the accused in any event. He says he picked image 9 immediately.
97He says he looked ‘down the page’. The man in photograph 1 is at the top left side of the photoboard. The accused is at the bottom left side. There is another image between them as you look down the page, at position 5. Mr Sharkey’s description of looking ‘down the page’ means he in fact looked at the one other male sporting a lip ring, but did not choose him.
98The import of Mr Sharkey’s overall evidence in my view is that he could recall the facial features of the male. He could recall the nose and eyes and shape of the face. But there was nothing distinctive he could describe about those. The only distinctive features he could describe were the fact that the man had a lip ring, that he thought he may have had an eyebrow ring, and had hair smoothed across like he was dressed up to go out. He was at pains to say, although the lip ring was described by him as a distinctive feature that is not all that he recalled nor the reason underpinning his selection of image 9.
99Mr Page submitted that the only image with the combination of lip ring and hair as described by Mr Sharkey meant number 1 was eliminated (on account of hair style), making image 9 the inevitable selection. However, Mr Sharkey stated in evidence before me that the distinctive hairstyle he had described in his statement was in fact different to the hairstyle of the male in image 9. In other words, that distinctive feature was not a reason for selecting image 9, rather it was his memory of the man’s face overall. In my view that adds strength to his photoboard identification.
100Similarly, the accused in the photograph does not have an eyebrow ring, and so that one other possible feature nominated by the witness could not have played a part in his selection.
Manner of his identification
101At the time of viewing the photoboard, Mr Sharkey made his identification with certainty. According to DLSC Leonard he identified image 9 and stated “Yep, that’s the guy there.”
102According to Mr Sharkey, he selected the image immediately. He did not describe that selection in terms of similarity or comparison, but nominated that as the person who was in his taxi.
103Although I am conscious of the risk of an honest and compelling witness making a mistake in this area, at the point of admissibility I should take into account the manner of his identification. Had he expressed uncertainty or described it in terms of similarity for example, I would take that into account.
Conclusion as to Probative Value
104Taking into account the opportunity for observation, the composition of the photoboard, and the manner of the identification made by Mr Sharkey, in my view the photoboard identification has high probative value.
Assessing the danger of unfair prejudice
105Unfair prejudice must relate to the jury somehow misusing the photoboard identification.[17]
[17] R v Fisher [2001] NSWCCA 380 referring to R v BD (1997) 94 A Crim R 131 as quoted with approval by McHugh J in Papakosmas v The Queen (1999) 196 CLR 297
106Beyond the known dangers of identification evidence assuming importance in the mind of a jury, there was nothing in particular advanced as founding unfairness to the accused here. There is nothing about the photographs themselves which suggests they are police photographs. In my view the issue of police having a photograph of the accused prior to his arrest can be adequately managed at the Trial by agreement between the parties.
107The Trial Judge in this matter will be required to give detailed directions to the jury regarding the potential unreliability of identification evidence more broadly, and in line with the specifics of this case. Those matters will include directions as to the fact this is identification of a stranger, made some 2 weeks after their reasonably limited interaction, and outlining the limits of the photoboard, including the fact only 2 images are of men with lip rings, one of whom has short cropped hair.
108Mr Sharkey and LDSC Leonard will likely be cross examined as to those issues.
109The jury will be told the photoboard identification is a piece of circumstantial evidence, incapable of directly proving that the accused committed the offence, but taken with other evidence tends to support that conclusion.
110The photoboard identification is an important piece of evidence from the Prosecution perspective. However, it is not the central plank of the Prosecution case. Without it, the Prosecution will rely inter alia on the following: the animosity directed by the accused at the complainant earlier in the evening including direct threats; the timing of the accused leaving Beer Deluxe as per the CCTV footage; the clothing worn by the accused as per the CCTV footage; the observations of the broken phone screen; the timing and locations of the taxi ride; the proximate drop off to the complainant’s home; the description given by Mr Sharkey of the male who is similar in appearance to the accused, including his demeanour and the broken phone screen; the fact none of the neighbours describe hearing any vehicle arrive prior to the fire; the mobile phone data showing the accused’s phone using the Wodonga tower at 3:25am; the conclusion of the forensic officer that the fire was deliberately lit; the complainant’s evidence that after the fire she found a gift for her male co-worker which had been broken; as well as the evidence of the accused’s mother and Mr Seaman (if admitted) of admissions made afterwards.
Conclusion
111In my view the probative value of the photoboard identification made by Mr Sharkey is high. Any issues regarding fairness of the composition of the board are likely to be canvassed in cross examination and subject to detailed directions.
112In my view there is little danger of unfair prejudice to the accused. Any unfair prejudice because of the inherent dangers of identification evidence do not in my view outweigh the probative value of the evidence. The accused’s right to a fair trial in that regard will be protected by directions broadly and specifically.
113In light of those conclusions, I propose to admit evidence of photoboard identification.
And I so rule.
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