DPP v Nguyen, Ho & Nguyen (Ruling no 3) - [2007] VSC 295

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1529 of 2005

THE QUEEN

DANG KHOA NGUYEN, BILL HO AND DANG QUANG NGUYEN

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF HEARING:	6-8 August 2007
DATE OF RULING:	13 August 2007
CASE MAY BE CITED AS:	R v Nguyen, Ho and Nguyen (Ruling No. 1)
MEDIUM NEUTRAL CITATION:	[2007] VSC 295	Revised 31 October 2007

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EVIDENCE – Identification of accused by photograph – Application to exclude photoboard identification – Whether practicable to organise identification parade – Challenge to array

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R Pirrie with Mr R Hammill	Office of Public Prosecutions
For the First Defendant	Mr W Toohey	Haines & Polites
For the Second Defendant	Mr W Stuart	Valos Black & Associates
For the Third Defendant	Mr M Rochford	Michael J Gleeson & Associates

TABLE OF CONTENTS

The law

Chronology of events

The identification evidence

Submissions

Conclusion

HER HONOUR:

The defendants, Mr Dang Khoa Nguyen (“Mr Khoa Nguyen”), Mr Bill Ho and Mr Khoa Nguyen’s younger brother, Mr Dang Quang Nguyen (“Mr Quang Nguyen”), are charged with the murder of Mr Hieu Lu, the attempted murder of Mr Chau Nguyen and the intentional injuring of Mr Viet Tran and Mr Hung Nguyen.

The prosecution wishes to lead evidence of the identification of each of the accused by witnesses who had been shown photoboards prepared by police. Each of the defendants submits that the identification evidence against him should be excluded in the exercise of the Court’s discretion.

The law

The relevant legal principles are not in dispute. Identification evidence, generally, and photographic identification, in particular, is recognised to be inherently fragile.[1] Nevertheless, evidence of identification by selection from images on a photoboard is admissible evidence. The evidence may be excluded in the exercise of the court’s discretion because its admission would be unfair to the accused if, for example its prejudicial effect would outweigh its probative value[2] or because it was obtained by improper means. [3]
[1]See: Alexander v R (1981) 145 CLR 385 at 426 per Mason J.
[2]Alexander v R (1981) 145 CLR 385 at 402-3 per Gibbs CJ; 430 per Mason J.
[3]See the discussion of authorities in R v Lam (Ruling No 5) [2005] VSC 279 at [14] per Redlich J.

Further, it should only be in exceptional cases that evidence of identification from a photoboard should be admitted when a person is suspected by police and they can arrange for direct identification by a witness using an identification parade or other means.[4] Whilst there is, nevertheless, no general rule that identification from photographs should be excluded if the accused is in custody and it is reasonable and practicable to hold an identification parade, those factors should be taken into account in the exercise of the discretion to exclude.[5] As Hunt CJ explained in R v Carusi:

There are well recognised considerations which would incline a trial judge to permit evidence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] VSC 295
Decision Date: 13 August 2007

CaseChat Overview and Summary

In the case of DPP v Nguyen, Ho & Nguyen, the Director of Public Prosecutions sought the exclusion of a photoboard identification from evidence against three defendants charged with serious criminal offences. The defendants challenged the identification on the grounds that the prosecution had failed to organise an identification parade and that the photoboard identification was inherently unfair. The case was heard in the Supreme Court of Victoria.

The primary legal issue was whether the prosecution had an obligation to organise an identification parade and whether the photoboard identification was admissible in light of the failure to do so. The defendants argued that the photoboard identification was unfair because it did not allow for a live identification, which is considered the more reliable method. They further argued that the prosecution had not demonstrated that it was not practicable to organise an identification parade.

The court considered the principles set out in previous case law regarding identification evidence, particularly the obligation to organise an identification parade where practicable and the circumstances under which a photoboard identification may be considered. The court noted that the decision to exclude identification evidence was a discretionary one, requiring consideration of the circumstances of each case. The court found that while it was preferable to conduct an identification parade, it was not always practicable to do so. In this case, the prosecution had provided a reasonable explanation for why an identification parade could not be organised, and the photoboard identification was reliable in the circumstances. The court held that the photoboard identification was admissible and denied the application to exclude it.

The court's decision was that the application to exclude the photoboard identification was dismissed, and the evidence was admitted. The defendants' challenge to the fairness of the identification process was also rejected.

Orders