Fowkes v The King

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2023 0021

TYSON FOWKES	Applicant
v
THE KING	Respondent

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JUDGES:	EMERTON P, PRIEST and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	4 July 2023
DATE OF JUDGMENT:	6 July 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 160
JUDGMENT APPEALED FROM:	DPP v Fowkes (Unreported, County Court of Victoria, 2 November 2022, Judge Hampel)

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CRIMINAL LAW – Interlocutory appeal – Identification evidence – Identification from Facebook photographs – Witnesses identified applicant from Facebook photographs after conversations with another person – Trial judge refused to exclude evidence – Whether identification evidence inadmissible under s 114(2) of the Evidence Act 2008 – Whether evidence to be excluded under s 137 of the Evidence Act 2008 on the basis that probative value of evidence outweighed by risk of unfair prejudice – Leave to appeal granted – Appeal allowed.

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Counsel
Applicant:		Mr D I Mence
Respondent:		Ms N Rogers SC
Solicitors
Applicant:	Garde Wilson Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON P
PRIEST JA
KAYE JA:

Introduction

Tyson Fowkes, the applicant, faces trial in the County Court on charges of armed robbery (charge 1), false imprisonment (charges 2 and 3) and aggravated carjacking (charges 4 and 5).
The prosecution case is that, on 10 June 2020, the applicant, together with two males — Aaron Burnie (‘Burnie’) and David Owen Jones (‘Jones’) — and a female — Charmayne McEwen (‘McEwen’) — entered the home of Jason Gibson and Alison Gibson in a suburb of Geelong, threatened them with weapons, robbed them of cash, falsely imprisoned them, demanded money from them, compelled them to transfer funds to the four assailants, and ultimately drove away in the Gibsons’ two motor vehicles.
It seems that the Gibsons initially were reluctant to report the matter to the police, and did not make their first statements to police until 25 June 2020, a little over two weeks after the alleged offending. In those statements, they said that they had identified all four assailants from ‘Facebook’ photographs, but provided no detail as to how that had come about. Alison Gibson also said that, when the four assailants came to the house, she recognised Jones, but did not know any of the other three.
The applicant, Jones and McEwen were not arrested and charged until two months after the Gibsons made their first statements. Burnie, Jones and McEwen have all since been dealt with. The applicant, however, denies attending the Gibsons’ residence on 10 June 2020, and denies any involvement in the alleged offending.
To a large extent, the prosecution case rests on the evidence of the Gibsons identifying the applicant as the third of the male assailants, albeit that there is some other evidence potentially linking him to the offending. That evidence is of recorded ‘Arunta’ telephone calls said to be between the applicant and Burnie when Burnie was in custody.[1] Those calls are said to relate to hiding or disposing of the stolen cars, and to show an association between all four alleged offenders and the offending.
[1]The Arunta Prisoner Telephone System records prisoner telephone calls.
Relying on ss 55, 114(2) and 137 of the Evidence Act 2008 (‘the Act’), in a pre-empanelment application to the trial judge, counsel for the applicant sought the exclusion of the Gibsons’ evidence identifying the applicant from photographs on ‘Facebook’ as the third male offender. Counsel submitted to the trial judge that the identification evidence is so inherently incredible, fanciful or preposterous, that it fails the relevance test in s 55. Alternatively, if the evidence does pass the threshold for relevance, it is nonetheless inadmissible because the threshold for admissibility of visual identification evidence under s 114(2) has not been met. Further in the alternative, if the evidence is admissible under s 114, then it should be excluded under s 137, since the danger of unfair prejudice flowing from its admission outweighs its probative value.
It is to be noted that, on the hearing before the trial judge, counsel were content to rely upon the evidence in the depositions — including the statements of various witnesses and a transcript of their oral evidence to the committing magistrate — and other material that had been disclosed by the prosecution. In particular, counsel for the applicant relied on statements made to police by Alison Gibson and Jason Gibson — they had each made two statements — and a statement by the informant, Detective Senior Constable Warren Normoyle; the transcript of those witnesses’ cross-examination at committal; police notes; and a statement by Detective Senior Constable Brett Hampson, one of the police officers who attended the Gibsons’ home the day after the alleged offending. No additional evidence was introduced on voir dire.
By a ruling delivered on 2 November 2022, the judge refused to exclude the evidence on the three bases advanced (‘the ruling’ or ‘the interlocutory decision’).
Pursuant to certification of the trial judge under s 295(3)(a) of the Criminal Procedure Act 2009 (‘CPA’) given that same day, the applicant seeks leave to appeal against the ruling on three grounds, which contend that the trial judge —
1… erred in ruling that the evidence was admissible under s 114(2) of the Act when each of the identifications was made by a person who was intentionally influenced to identify the accused.
2… reversed the onus of proof such that the accused was required to disprove the element of intentional influence under s 114(2) of the Act.
3… erred in finding that the probative value of the evidence outweighed the danger of unfair prejudice to the accused under s 137 of the Act.
In our opinion, leave to appeal should be granted, the appeal allowed and the interlocutory decision set aside. The judge should have found the identification evidence was inadmissible by virtue of s 114(2) of the Act. Our reasons follow.

The process of identification

As we have said, Alison Gibson made two statements to police. The first is dated 25 June 2020; and the second, which is undated, was made at some time in August 2020 (so Ms Gibson believes).
In her first statement, Ms Gibson said that ‘around tea time’ on 10 June 2020, she was alerted by her husband to the presence of people at their address. She stated (among other things):[2]
I was not expecting anyone else to attend at our address and I immediately went to my mobile phone and activated the security lights to come on that are positioned at a number of locations outside of my address. … After I activated the security lights, I looked at my phone and I could see four persons standing on the front driveway area, approximately two metres from the front comer of the house. I did not recognise any of these persons. …
When I approached these four persons, I could see that there were three males and a female present. I initially did not recognise any of these people. I looked at each of these people and said to one of the males, ‘Your [scil, You’re] Owen’. I recognised ‘Owen’ as being a male I had met previously 5 or 6 months ago at a friend’s address in Boundary Road in Breakwater. I said to the other two males, I don’t know you, or you and said the same to the female. One of the males was tall and solid build and was wearing shorts and t-shirt. I recall this male having tattoos on his legs. The second male was wearing a hooded top and pants.
…
Since this incident I have become aware of several of the names of those persons who have attended our address on the evening of 10^th June 2020.
I have identified by a Facebook photo the male wearing the shorts and t-shirt as [Aaron] Burnie. I have identified Burnie’s photograph on the Facebook page of Shay McEwen. There are a number of photographs of Burnie on this page.
I have also identified Shay McEwen as being the female that attended our address with the three males on the evening of 10th June, 2020. There is a photograph of McEwen with Burnie on her Facebook page.
I have also identified by Facebook, Tyson Fowkes as being the male wearing the hooded top that attended out address on the evening of 10th June, 2020. There is a picture of Fowkes on his Facebook page.
I have provided a screen shot of these Facebook pages to the police.
[2]Emphasis added to this and following passages.
In her second, undated, statement, Ms Gibson said:
2. I made a statement to police on 25 June 2020 regarding an incident which occurred on 10 June 2020.
3. In this statement I identified Tyson Fowkes as being one of the offenders who attended my house.
4. On I0 June 2020 my friend Kelly Luscombe was at my house when the run through happened. She saw all the offenders. She didn’t know who Tyson was at the time but a few hours afterwards, when she was still at my house, she said someone told her it was Tyson Fowkes.
5. I immediately looked up ‘Tyson Folkes’ on Facebook, utilising my Facebook account ‘Alison Gibson’. I could not find him. Kelly then told me it was spelt ‘Fowkes’ not ‘Folkes’.
6. As soon as I tried the proper spelling, I found his two Facebook accounts, both in the name of ‘Tyson Fowkes’.
7. The first account of ‘Tyson Fowkes’ I clicked on, had a photo of him and a girl sitting on a swing in front of a mountain as its display picture. I went through the photos, I immediately recognised him to be one of the offenders. Although he looked a lot more ‘built’ in the photos. He still had the big ears and square jaw I remembered though.
8. The second account of ‘Tyson Fowkes’ I clicked on had a photo of him in a car with a person tagged as ‘Stan’ as the display picture. Tyson was a lot skinnier in this photo and looked exactly like he did the day he did the run through on my house.
9. I was by myself when I found him on Facebook and I immediately recognised him. I then showed it to my husband Jason straight away and he agreed it was him.
10. Also, in the days after the run through word of mouth got around. I don’t remember exactly who said it, but a lot of people were saying it was Tyson Fowkes, Owen Jones, Shay McEwen and Aaron Burnie who had done the run through.
11. Regarding Tyson, the thing that I really remember is him having big ears and a square jaw. When you go through a near death experience you don’t forget the faces who did it to you. So as soon as I saw the face on the two profiles, I knew it was Tyson Fowkes.
Under cross-examination at committal proceedings on 27 May 2021, Ms Gibson gave the following evidence:
You’ve indicated that at some point in time Kelly [Luscombe] told you that the offender that you didn’t know was Tyson Fowkes, is that correct?---That was later on in the evening, yes.
When in the evening?---Some time after they’d left, I’m not sure.
Was it prior to police calling at 2 am in the morning?---I can’t recall.
Was it prior to police arriving at approximately 11 am the next day?---Yeah.
Okay. So can you please, as best you can, what do you recall of that discussion?---Um. She advised me who the people were and she said that that was Tyson Fowkes, so I went onto Facebook and searched Tyson Fowkes with F-o-l-k-s, not – I didn’t know how to spell his surname, I just assumed it was that, and she – I said to her, ‘I can’t find him’ and she said, ‘It’s F-o-w-k-e-s’, so I looked up that and found him straight away. There was two profiles.
And she was present with you when you were doing this?---I was in my room, she was down in the other end of the house, I think she was in the lounge room.
She was in the lounge room, sorry?---Yes, I think so.
So you’ve looked up the first name and then you’ve obviously gone down to the lounge room and said, ‘I can’t find it’, and what, she’s given you another spelling?---Yes.
And then you found it?---Yeah.
Have you had a discussion with (indistinct) in relation to these Facebook photos?---I cannot recall.
Can you recall any discussion with anyone in the house in relation to these Facebook photos?---I said to my husband, um, that I’d found him.
Jason Gibson provided statements to police on 25 June and 5 October 2020. In his first statement, Mr Gibson said (among other things):
On Wednesday the 10^th of June 2020, at approximately 6:30 pm I was moving my white Hyundai hire car from the front of the house so our wood delivery man could deliver our wood. I was reversing back and noticed four people moving towards the front of the house. They were three males and one female. I did not know any of them.
One of the males was clearly larger than the other two. He was Caucasian, about mid 30s maybe, large solid build, shaved head with light coloured hair and was wearing shorts and an ankle bracelet. He later introduces himself as Aaron Burnie.
The second male was wearing a dark hooded jumper, long pants. He was of a medium build, average height, 170 centimetres roughly. He had dark hair, was Caucasian, looked about 35 years old. I remember actually thinking that he looked a bit like Mark Pollard, the person he referred to when they first approached me. Alison [Gibson] later tells me that this male is known to her as Owen Jones. ...
The third male was about 175 centimetres tall, a skinny build, scruffy collar length dark hair. I can’t recall what he was wearing. I have since seen him on Facebook but am unsure of his name.
The female was Caucasian, about 165 centimetres tall, scraggy brown hair, she looked like she’d just gotten out of bed. I reckon she was about 19 years of age. I can’t recall what she was actually wearing.
In his second statement, Mr Gibson said:
2. This is the second statement I have made to Police in regard to an incident that occurred on 10^th of June 2020 at my residential address.
3. Persons also at the incident were Kelly Luscombe and Robert Black. They got on the phone after the incident and asked around who is hanging around Burnie.
4. It didn’t take long but Kelly told me Burnies [scil, Burnie is] hanging around Owen Jones, Tyson Fowkes or Fowlkes and his girlfriend. She said go have a look on Facebook it won’t take long to workout [scil, work out].
5. I was with Rob Black going through my phone. He was also going through his phone looking for these people. My wife Allison was also in the house also trying to workout [sic] who it was.
6. I was on my own Facebook profile with my account Jason Gibson. I was using my iPhone. I typed their names in the search bar. As soon as I typed Aaron Burnie it came up straight away and it came up with a ‘person you may know’. I believe that would be because we’re from the same area, know the same people and part of the same groups. The profile picture for Aaron Burnie matched him straight away. It had photos of him boxing, mimicking boxing with another guy. I was in shock when I found Burnie because he was a big boy back in his hay day [scil, heyday].
7. I found Owen Jones straight away on Facebook as well. l took screenshots of his profile. Police currently have my phone and they are on there.
…
9. I typed in Tyson Fowkes and different spellings and his name didn’t come up at all. I tried a couple of names and got fed up with it because it was a long night. About 45 minutes later my wife Allison came down from her a room and showed me her phone and said ‘that’s him isn’t it?’ I looked at the photo and immediately recognised that to be Tyson and I said, ‘that’s him for sure’.
10. It was a photo straight up of Tyson. It was a selfie of him in a car with another mate. I asked Allison how did you spell the name? She told me and I typed it my iPhone and found him straight away. The big ears stood out and his squarish jaw the photos in the face book [scil, Facebook] photo showed him to be a bit heavier than he was on the night of the incident. I also took a screenshot of Tyson’s Facebook Profile on my phone.
Kelly Luscombe refused to provide a statement to police and was not summoned for compulsory examination.

Submissions of the parties to the trial judge

In seeking the exclusion of the identification evidence of Alison and Jason Gibson, counsel submitted to the trial judge that there was a considerable period — 15 days — between their observations and subsequent report to police. Further, there were significant discrepancies between them as to which offender was the applicant, so that it was evident that they each nominated the applicant as different offenders. This fundamental inconsistency demonstrates the low probative value of their evidence, resulting from ‘a flawed identification process’. Counsel also submitted that the circumstances in which the observations of the offender were made show that the subsequent identification ‘is weak and unconvincing’, and thus of low probative value.
Counsel for the applicant submitted that this is a case where the probative value is ‘so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury’. Matters said to militate ‘towards the conclusion of incredulousness’ include: drug use by Alison Gibson; the complainants were under stress; the short duration of the incident; the complainants were identifying a person previously unknown to them; contamination flowing from the complainants having been provided with a name; and the problems associated with Facebook identifications.
The prosecutor submitted that the evidence was not inadmissible under s 114 of the Act. He submitted that it would not have been reasonable to have held an identification parade.[3] Moreover, the identification was made without the identifying witnesses being intentionally influenced to identify the applicant. The evidence was not so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury.
[3]Counsel cited Peterson (a pseudonym) v The Queen [2014] VSCA 111, [46]–[57] (Priest and Beach JJA) (‘Peterson’); and DPP v Donald [1999] NSWSC 949, [4]–[11] (Bell J).

The Ruling

In her ruling, the judge set out the evidence and the submissions of the parties. She then observed that IMM[4] — from which she quoted a number of passages from the judgment of French CJ, Kiefel, Bell and Keane JJ at length[5] — was the correct starting point of her analysis, and said that she had derived great assistance from Peterson,[6] Hague,[7] Dempsey[8] and Folau.[9]
[4]IMM v The Queen (2016) 257 CLR 300 (‘IMM’).
[5]Ibid 311–2 [35], [37], [38], [39], [40], [42], 313–5 [43], [44], [45], [47], [48], [50], [51], [52], 316 [54] and 317 [58].
[6]Peterson [2014] VSCA 111 (Priest and Beach JJA).
[7]DPP v Hague [2018] VSCA 39 (Maxwell P, Priest and Beach JJA) (‘Hague’).
[8]Dempsey v The Queen [2019] VSCA 224 (Beach, Kaye and Ashley JJA) (‘Dempsey’).
[9]DPP v Folau (Ruling No 4) [2022] VSC 49 (Lasry J) (‘Folau’).
The trial judge noted the various aspects that defence counsel relied upon to submit that the probative value of the evidence was low, but said that, in her view, those things ‘go to credibility and reliability, rather than the assessment of the probative value of the evidence in the first place’. She said that ‘the matters that go to the assessment of probative value of the evidence’ were the opportunity to observe — ‘this was an [incident] that occurred for a period of somewhere under an hour’ — and the circumstances of observation (which she described). The judge said she was not satisfied that any of the matters relied on by the applicant’s counsel ‘to characterise the evidence as preposterous, incredible or fanciful, are proper to take into account in making that assessment’. Ultimately, the judge observed:
[74] I am therefore satisfied that the evidence clearly passes the threshold test for relevance for s 55. I am also satisfied that, for the reasons I have given, that the evidence is of at least moderate, if not high probative value for the purposes of s 137. And, I am not satisfied the matters relied upon by [defence counsel] in challenging the probative value of the evidence, which I characterise as going to credibility or reliability, are such as to create a risk of unfair prejudice that cannot be addressed by jury directions. There is nothing unusual or remarkable about any of those features that takes them out of the categories of the matters that are quintessential jury questions.
[75] [Defence counsel] submitted there was a risk or danger of unfair prejudice that could not be remedied by a direction. She relied on the risk that the jury would overestimate the value of the identification evidence, the inability to test and unravel the process of identification for either witness, the absence of independent evidence available to the accused to cross-examine about what photographs they actually saw, apart from the two that were saved by screenshot by Ms Gibson, and the fact that the photos on the Facebook profiles saved in the screenshots by Ms Gibson were three to four years old. All of those matters are matters that again are entirely unremarkable and generally the matter of jury directions, and the danger of unfair prejudice flowing from them has been consistently treated by courts as properly able to be addressed by properly directed jury directions and defence arguments.
[76] The other matter that was relied on for what could be regarded as risk of unfair prejudice but not as assessing probative value, is the absence of Ms Luscombe. For the reasons that I expressed in the course of submissions, I do not consider the evidence as double hearsay, because it is not being led as evidence of and proof of truth of the assertion by Ms Luscombe. It is evidence that only indicates how the chain of enquiry that led to the viewing of the Facebook pages by the two victims came out. And again, that is a matter that can properly be addressed by direction.
[77] So, none of those matters alone or in combination, in my view, indicate that the risk of unfair prejudice is such that the discretion should be exercised to exclude the evidence, rather than to deal with the risk by appropriately tailored submissions and directions.
[78] Turning then finally to s 114. Clearly the approach taken in Peterson and approved by Court of Appeal in that case, namely, that there was a clear risk that any later identification by way of ID parade or photo board after the witness had already of their own volition identified an offender from Facebook, provides a sound reason within the meaning of s 114(2)(b) for declining to conduct an ID parade. I am satisfied that the evidence is not to be excluded under s 114(2) or rather the evidence is admissible notwithstanding s 114(2).
[79] For those reasons, the application to exclude the evidence on the three bases of s 55, s 114 and s 137 is rejected.

Applicant’s submissions in this Court

Counsel for the applicant submitted that it is common ground that the prosecution case rests substantially, if not wholly, on the identification evidence of Jason and Alison Gibson to the effect that the applicant was the ‘third man’.
The thrust of counsel’s submissions under ground 1 was that the evidence before the trial judge indicated that the identification witnesses had ‘been intentionally influenced to identify the accused’. There is nothing in the text of s 114(2) of the Act to suggest that ‘intentional influence’ can only be exerted by police or other investigating officials. It is plain that s 114(2) applies where a witness has been influenced in his or her identification by a third party.[10] The evidence of the Gibsons reveals that they were directly and purposefully influenced by Kelly Luscombe to identify the applicant. They were told that he was the ‘third man’ and invited to identify him as such (before seeing any image of him). It is clear that Luscombe conveyed to Mrs Gibson that if she found an image of Tyson Fowkes on Facebook she would quickly recognise him as one of the offenders. Counsel submitted that the evidence of the Gibsons ‘has all the hallmarks of unreliability that s 114 was introduced to guard against’. The defence cannot fairly test their evidence by means of cross-examination. There is no way to establish the reliability of the process by which the Gibsons identified the applicant. Hence, the prosecution cannot meet the stringent requirement under s 114(2) of the Act to prove a lack of intentional influence. It simply was not open to the judge on the evidence to find that the Gibsons were not intentionally influenced by Luscombe.
[10]Wilson (a pseudonym) v The King [2022] VSCA 261, [86]–[87] (McLeish and Kennedy JJA and Kidd AJA) (‘Wilson’).
In support of ground 2, counsel for the applicant submitted that the judge reversed the onus of proof, by finding that there was an absence of any evidence as to whether what was said by Luscombe was perceived by either of the Gibsons as having the capacity to influence them, and by finding that there was no evidence that it did in fact influence them. The effect of those findings was such as to require the applicant to disprove the element of intentional influence under s 114(2) of the Act. It was not for the defence to satisfy the trial judge that the Gibsons were intentionally influenced to identify the applicant, but instead for the prosecution to satisfy her that they were not so influenced.
Under ground 3, counsel for the applicant submitted that the judge should have excluded the evidence because the danger of unfair prejudice to the applicant very clearly outweighed its probative value. This is especially so in circumstances where the inherent unreliability of the Gibsons’ evidence cannot be adequately explored through cross-examination alone. The applicant is at a forensic disadvantage, counsel contended, ‘in that closed questions directed at the process of identification will yield bare denials that will simply reinforce the narrative given by the Gibsons in their second statements’. Furthermore, the authorities speak with one voice as to the fraught nature of visual identification evidence. Juries are not well equipped by their ordinary experience to deal with complex issues of cognitive bias and reconstructive memory. The probative value of the Gibsons’ identifications can only be low, even conceding the approach to be taken with respect to reliability and credibility mandated by IMM. Counsel submitted that the danger of unfair prejudice is ‘rank’, because there is no way for the defence to establish that the Gibsons only identified the applicant because they were told by Luscombe that it was him, as distinct from an identification that was free of intentional influence. The situation goes well beyond that of the ‘displacement effect’. It is more akin to an informant nominating the person who committed the crime and then asking a witness to pick that person out from a parade.

Respondent’s submissions in this Court

Counsel for the respondent accepted that the prosecution case rests on the evidence of Alison Gibson and Jason Gibson, identifying the applicant as the third of the male assailants. It was also common ground that the assailants Jones, Burnie and McEwan have already been dealt with in relation to this offending, and that Luscombe declined to provide a statement.
As to the first ground, the respondent’s counsel submitted that the trial judge correctly applied the principles in IMM, Peterson and Dempsey. The respondent’s counsel also submitted that the trial judge accurately determined that there was a clear risk that the fact that the Gibsons had already identified an offender from Facebook provided a sound reason within the meaning of s 114(2) for police declining to conduct an identification parade. (We note, however, that counsel for the applicant did not dispute that s 114(2)(b) is engaged because of the reasoning in Peterson. Once the Gibsons had identified the applicant from photographs, it was no longer desirable to conduct an identification parade, since such a parade would reinforce the displacement effect.)[11]
[11]Peterson, [47]–[48].
Counsel submitted that ground 2 was misconceived. The judge having found that it would not have been reasonable for police to have held an identification parade, there was no work to be done by the final words in s 114(2): ‘and the identification was made without the person who made it having been intentionally influenced to identify the accused’. While the judge noted that the Gibsons had not been cross-examined on whether the nomination of the applicant as the assailant had influenced them and there was no evidence that it did in fact influence them, that observation was immaterial. It could not have played any part in the judge’s reasoning in concluding that there was a sound reason for police not to have conducted an identification parade, given Alison and Jason had previously viewed photographs of the applicant.
In response to questions from the bench, however, counsel for the respondent appeared to accept that the final words of s 114(2) might still have work to do, even where it would not have been reasonable to hold an identity parade. Insofar as the influence exercised by Luscombe might be relevant, counsel stressed the significant opportunity that both Alison and Jason had had to familiarise themselves with the appearance of the offender during the course of the offending, which took place over a period of more than an hour. The offenders had arrived in daylight, were not masked or otherwise disguised, and spent a considerable period of time in close proximity to both Alison and Jason. The gravamen of this submission was that the Gibsons were well placed to identify the applicant in any event.
With respect to ground 3, the respondent’s counsel submitted that the judge pointed to a number of matters which rendered the probative value of the evidence to be at least moderate if not high. That assessment was clearly appropriate. Many of the matters relied upon by the applicant were, in the learned judge’s opinion, matters concerned with credibility and reliability. That being so, the judge considered there was nothing unusual or remarkable about any of them, which are quintessentially jury questions. Acknowledging that ‘there are certain credibility and reliability issues with the evidence of the Gibsons’, counsel contended that ‘these are well capable of being explored in cross-examination, just as they were at the committal’. Further, the judge was correct to conclude that other matters identified by the applicant said to create a risk or danger of unfair prejudice are unremarkable and can be addressed by jury directions. Counsel submitted that the applicant can effectively challenge the identification evidence at trial without any forensic constraint.
In summary, counsel for the respondent submitted that there is nothing to indicate that the judge applied incorrect principles to the facts of this case. The judge’s decision ‘was reasonably open and plainly correct’. Appropriate jury directions will guard against the risk of the jury giving the evidence undue weight.

Ground 1: The evidence was inadmissible under s 114(2) of the Act

We consider that the first ground must succeed.
The Dictionary to the Act defines identification evidence as follows:
identification evidence means evidence that is—
(a) an assertion by a person to the effect that an accused was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where—
(i) the offence for which the accused is being prosecuted was committed; or
(ii) an act connected to that offence was done—
at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time; or
(b) a report (whether oral or in writing) of such an assertion; …
Section 114 of the Act is concerned with the exclusion of identification evidence.[12] It provides:[13]
[12]Although not concerned with admissibility, see also the definition of ‘identification evidence’ in s 35 of the Jury Directions Act 2015.
[13]Emphasis added.
114 Exclusion of visual identification evidence
(1) In this section, visual identification evidence means identification evidence relating to an identification based wholly or partly on what a person saw but does not include picture identification evidence.
(2) Visual identification evidence adduced by the prosecutor is not admissible unless—
(a) an identification parade that included the accused was held before the identification was made; or
(b) it would not have been reasonable to have held such a parade; or
(c) the accused refused to take part in such a parade—
and the identification was made without the person who made it having been intentionally influenced to identify the accused.
(3) Without limiting the matters that may be taken into account by the court in determining whether it was reasonable to hold an identification parade, it is to take into account—
(a)the kind of offence, and the gravity of the offence, concerned; and
(b) the importance of the evidence; and
(c) the practicality of holding an identification parade having regard, among other things—
(i) if the accused failed to cooperate in the conduct of the parade—to the manner and extent of, and the reason (if any) for, the failure; and
(ii)in any case—to whether the identification was made at or about the time of the commission of the offence; and
(d) the appropriateness of holding an identification parade having regard, among other things, to the relationship (if any) between the accused and the person who made the identification.
(4) It is presumed that it would not have been reasonable to have held an identification parade if it would have been unfair to the accused for such a parade to have been held.
(5) If—
(a) the accused refused to take part in an identification parade unless an Australian legal practitioner acting for the accused, or another person chosen by the accused, was present while it was being held; and
(b) there were, at the time when the parade was to have been conducted, reasonable grounds to believe that it was not reasonably practicable for such an Australian legal practitioner or person to be present—
it is presumed that it would not have been reasonable to have held an identification parade at that time.
(6) In determining whether it was reasonable to have held an identification parade, the court is not to take into account the availability of pictures or photographs that could be used in making identifications.
Each of paragraphs (a), (b) and (c) of s 114 (2) is expressed in the alternative. The requirement that the visual identification not be intentionally influenced applies to each of those alternative situations. Thus, it applies not only in the case of an identification made in an identification parade, but also in cases in which either, or both, of the alternative situations posited by s 114(2)(b) and (c) occur. In the present case, it was common ground that s 114(2)(b) applied to the identification evidence. Accordingly, in order for the identification evidence of Alison Gibson and Jason Gibson to be admissible, it must be demonstrated that their respective identifications of the applicant were made without them being intentionally influenced to identify the applicant as the offender.
By virtue of s 114(2), visual identification evidence is not admissible — no exercise of discretion is involved — unless the identification was made without the person making it having been intentionally influenced to identify the accused. The text of s 114(2) gives rise to significant difficulties of interpretation. Must the person making the visual identification actually have been influenced to identify the accused? Or is it sufficient that another exerted influence intentionally, whether or not the person making the identification was actually influenced to identify the accused?
Alison Gibson’s evidence[14] is that she initially did not recognise any of the four individuals who came to her home on 10 June 2020. Subsequently, she recognised ‘Owen’ (Jones) as a person she had met five or six months earlier. Luscombe, who saw all of the offenders, did not know the applicant at the time he was in the Gibsons’ residence. A few hours later, however, Luscombe told Alison Gibson that someone had informed her that one of the males was ‘Tyson Fowkes’. Having been told this, Ms Gibson then found two Facebook accounts belonging to the applicant. The first account had a photo of the applicant and a female. Ms Gibson then went through the photos, and, she claimed, ‘immediately recognised’ [the applicant] as one of the offenders — albeit he looked a lot more ‘built’ in the photos — he having ‘the big ears and square jaw’ she remembered. She was by herself when she found the applicant on Facebook and she ‘immediately recognised him’. Ms Gibson then immediately showed the photo to her husband, who ‘agreed it was him’.
[14]See [12]–[14] above.
Jason Gibson’s evidence[15] is that he did not know any of the four individuals who came to his home on 10 June 2020. One introduced himself as Aaron Burnie, and his wife later told him that one of the other males was Owen Jones. The third male he later saw on Facebook. Luscombe told Mr Gibson that Burnie associated with Jones, the applicant and his girlfriend, and told Mr Gibson to look on Facebook. Mr Gibson, his wife and Black all went through their phones ‘looking for these people’. He quickly found Facebook pages for Burnie and Jones, but could not find the applicant. A little later, his wife came down from her room, showed Mr Gibson a photo on her phone and said ‘that’s him isn’t it?’. Mr Gibson looked at the photo and immediately recognised it to be the applicant, saying, ‘that’s him for sure’. The photo was a ‘selfie’ of the applicant with another male. Having got the spelling of the applicant’s name from his wife, Mr Gibson typed it into his iPhone and immediately found the applicant. Mr Gibson’s evidence is that the applicant’s ‘big ears stood out and his squarish jaw’, although the Facebook photos showed the applicant to be a bit heavier than he was on the night of the incident. Mr Gibson then took a screenshot of the applicant’s Facebook Profile on his phone.
[15]See [15]–[16] above.
In summary, the evidence before the trial judge was that neither Alison nor Jason Gibson knew the applicant prior to the four offenders coming to their home on 10 June 2020. At some point after the offenders had gone, Luscombe told Alison Gibson that one of the four was ‘Tyson Fowkes’. Luscombe also told Jason Gibson that the applicant associated with Burnie and Jones, and told him to look on Facebook. Having been given the name Tyson Fowkes, Alison Gibson found two Facebook accounts for the applicant, and immediately recognised him, remembering in particular his big ears and squarish jaw. She then showed a photo of the applicant to her husband, saying ‘that’s him isn’t it?’. Her husband agreed that it was. Jason Gibson then independently found the applicant’s Facebook page, which contained photos. According to Mr Gibson, the applicant’s big ears and squarish jaw stood out in those photos.
Taking s 55 of the Act as the starting point of our analysis, we consider the impugned evidence clearly to be relevant, since, if it were accepted by a jury, it ‘could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding’; that is, whether the applicant was one of the four offenders at the Gibsons’ home on 22 June 2020.
Moreover, there can be no doubt that the evidence of Alison and Jason Gibson is identification evidence within the meaning of the Act. Both make ‘an assertion … to the effect that [the applicant] was … a person who was … present at or near a place where … the offence for which [the applicant] is being prosecuted was committed … at or about the time at which the offence was committed … being an assertion that is based wholly or partly on what [they] saw … at that place and time’. And it is clearly visual identification evidence under s 114(1), since it relates ‘to an identification based wholly or partly on what a person saw’.[16]
[16]See also Festa v The Queen (2001) 208 CLR 593, 610 (McHugh J).
Next, since it is visual identification evidence, the impugned evidence is not admissible unless, first, it would not have been reasonable to have held an identification parade — the applicant accepts that it would not have been reasonable to do so — and, secondly, the identification in each case was made without the Gibsons having been ‘intentionally influenced to identify’ the applicant.
The steps involved in the process of visual identification were described in Craig,[17] a case in which the appellant was convicted of the murder of a young female, whose battered body was found in a National Park. The evidence at trial established that the victim had been driven in a motor car from Redfern to the National Park by a man, and that she had there been murdered by repeated blows on the head. At trial, the issue was whether the prisoner was the man driving the car. Proof of his identity depended upon the evidence of witnesses who had seen the driver at two places at which the car stopped on its way to the National Park and of witnesses who had seen him at a place where he stopped on the return journey after the murder. Evatt and McTiernan JJ set out what the process of identification involved as follows:
An honest witness who says ‘The prisoner is the man who drove the car’, whilst appearing to affirm a simple, clear and impressive proposition, is really asserting: (1) that he observed the driver, (2) that the observation became impressed upon his mind, (3) that he still retains the original impression, (4) that such impression has not been affected, altered or replaced, by published portraits of the prisoner, and (5) that the resemblance between the original impression and the prisoner is sufficient to base a judgment, not of resemblance, but of identity.[18]
[17]Craig v The King (1933) 49 CLR 429 (‘Craig’).
[18]Ibid 446.
The interpretation of s 114(2) is, as we have indicated, not free from difficulty. When regard is had to its historical context and purpose, however, it is plain that it was principally aimed at investigative techniques employed by police. As the Australian Law Reform Commission (‘ALRC’) made clear, prior to the enactment of the uniform Evidence Acts, the common law had developed a preference for identification parades as opposed to other techniques (such as the use of photographs). The benefits of identification parades included that they are less suggestive than other methods of ‘picking out’ (e.g. pointing to a suspect in a prison yard or in the court house); they avoid the prejudicial tendency of photographs to suggest to the witness or the jury that the suspect has a criminal record; they provide a more ‘holistic’ means to observe suspects than the static two-dimensional framing of a photo; and they allow the suspect (or their lawyer) to be present to observe the identification process.[19]
[19]Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005), (‘ALRC 102’), [13.54]. See also Australian Law Reform Commission, Evidence, Report No 38 (1987), [185].

Furthermore, the ALRC made plain that it was a deliberate policy choice to render inadmissible evidence obtained by techniques other than an identification parade (save where the exceptions in ss 114(2)(b) or (c) of the Act apply):
Under the uniform Evidence Acts, police use of alternative methods of identification (in circumstances where the exceptions in [s 114(2)(b) and (c)] do not apply) is no longer merely a matter going to the weight of the evidence, as is the case at common law. This was a conscious policy decision. The use of alternative techniques to identify suspects in the early stages of police procedure can taint all subsequent identification evidence adduced at trial, particularly in cases where there are few witnesses. This is due to the ‘displacement effect’ in memory and observation, whereby witnesses tend to recollect (and subsequently identify as the suspect) the image of any person shown to them through photos or other means, as opposed to the face of the offender they observed at the scene.[20] The adverse consequences of the ‘displacement effect’ make it vital to ensure the reliability of the initial identification procedures to which a witness is exposed. The Commissions believe that it is thus more appropriate for the consequence of the particular identification procedure employed by the police to go to the question of admissibility rather than the question of weight.[21]
[20]See Alexander v The Queen (1981) 145 CLR 395, 409 (‘Alexander’). See also Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), [421]. More recently, the New South Wales Court of Criminal Appeal discussed the problem of the ‘displacement effect’ in Clarke v The Queen (1994) 71 A Crim R 58. This aspect of the case was analysed in D Patch, ‘Clarke’ (1994) 18 Criminal Law Journal 296, 297–298.
[21]ALRC 102, [13.56].
Moreover, the text of s 114 makes plain that the section is primarily directed to the conduct of identification parades. Subsections (3) to (6) are concerned specifically with the question whether, in the circumstances, it was reasonable to hold an identification parade. Indeed, s 114 must be viewed against the background that an identification parade has long been considered the ‘safest and most satisfactory’ way of ensuring that a witness makes an accurate identification.[22] Further, and axiomatically, when an identification parade is to be held, it is necessary that precautions be taken to ensure that ‘no prompting, suggestion or hint’ is given to the witness that any particular member of the group is the suspect.[23]
[22]Alexander (1981) 145 CLR 395, 399–400 (Gibbs CJ).
[23]Ibid, 400 (Gibbs CJ).
As was observed in Bayley, Facebook, and other social media and networking sites have, in recent years, become a ubiquitous aspect of daily life. Potential witnesses are free to peruse photographs on Facebook (and similar sites) — without police oversight or other supervision — before attempting a formal identification process with law enforcement authorities. None of the safeguards which ordinarily attend photographic identification performed under the supervision of police will be present.[24] Indeed, in Strauss, Peek J warned against the use of Facebook for identification purposes:
It is undeniable that this new phenomenon may lead to the acquisition of suspects that police might not have obtained themselves. But what also must be stressed is that the process itself has very great problems in relation to the potential contamination of evidence necessary for a conviction in a court of law. Such problems are likely to arise when a victim of a crime, or a witness to it, searches Facebook looking for the offender using what information they have, or think they have, about the offender. This is, of course, what occurred in the present case. …
So called ‘Facebook identifications’ have none of the safeguards which accompany a properly executed formal identification procedure conducted by the police. Purported Facebook identifications from group photographs are particularly dangerous in that they present a seductive and deceptive air of being a plausible identification but in fact rarely involve a group of people each having similar features to the accused; they suffer from ‘foil bias’ as discussed above. Consequently, if a suspect with similar features to the real offender is depicted in a photograph of a group whose other members lack those features, the suspect will likely be identified by a witness as the offender in the fervour of the superimposed ‘Facebook chat’ and the pressure of the moment. The displacement effect will then later proceed to erase from the memory the subtle differences between the real offender and the person identified. Once again, there is the real danger that this is exactly what occurred in the present case …
Of course, the position is made even worse when, as occurred in the case of the present victim, a person is actually given the name of the man asserted by others to be the offender and then locates in Facebook a photograph of a group of people, one of whom is tagged with that name. If the appearance of that tagged man is not obviously inconsistent with a memory the person actually has of the actual offender, a ‘Facebook identification’ is highly likely to follow. That likelihood can only be increased in the circumstances of the present case where the victim had been drunk at the time of the assault and, at the time of the so called Facebook identification, was in the throes of a distracting hangover and pain resulting from his injuries and was harbouring a visceral (and justified) grievance against his attacker.^[25]
[24]Bayley v The Queen [2016] VSCA 160, [64]–[65] (Warren CJ, Weinberg and Priest JJA) (‘Bayley’).
[25]Strauss v Police (2013) 115 SASR 90, 103–4 [35]–[37]. See also, Bayley [66]; Peterson, [52]; State ofWestern Australia v Roe [2017] WASC 124, [34]–[48] (Banks-Smith J) (‘Roe’).
When it is put into its historical context, it is plain that the aim of s 114(2) was, first, to ensure that, as an investigative technique, identification parades were to be employed by police as the preferred method of identification; and, secondly, to ensure that, no matter what technique of identification was used, police did not by some means intentionally attempt to influence a person’s identification. Indeed, it is doubtful that, when enacting ss 114(2) of the Act (and associated provisions), the legislature contemplated the phenomenon of ‘Facebook identification’ by non-police which is a principal feature of this case, and of cases such as Strauss, Peterson and Bayley.
As we have earlier discussed,[26] on its face s 114 is not limited solely to identification evidence gathered by police. Indeed, there is nothing in the language in which s 114(2) is couched which suggests that the expression ‘having been intentionally influenced’ should be construed otherwise than in accordance with its plain terms. A person’s observations, impressions, perceptions or thinking are ‘influenced’ if they are by some means or in some fashion affected, altered, shaped or swayed (or, to use the language of Craig, the observation impressed upon his or her mind is ‘affected, altered or replaced’). In that vein, the verb ‘influenced’ ordinarily conveys the meaning of having a particular effect. The relevant effect for the purposes of s 114(2) is ‘to identify the accused’.
[26]See [36] above.
There can be no doubt that s 114(2) would require the exclusion of visual identification evidence if the person identifying the accused was in fact influenced to identify him or her (that is, there was a causal link between the person’s identification of the accused and the particular influence), in circumstances in which such influence was exercised by a third person[27] intentionally (that is, deliberately seeking to bring about that result). What is less clear is whether a person is ‘influenced’ if the particular influence employed or applied does not in fact have any causative effect, resulting in the identification of the accused (that is, the person would have identified the accused irrespective of the influence brought to bear).
[27]See Wilson [2022] VSCA 261, [87].
As to that, we consider that the proper interpretation of s 114(2) dictates that, although the exercise of the influence need not have been the sole, or even predominant, factor in having the relevant effect, it is evident that it must have a material effect. Thus, to influence someone is to have a material effect on that person. By its terms, s 114(2) requires it to be demonstrated that the identification was made without the person making the identification ‘having been intentionally influenced’ to identify the accused. Expressed in the passive voice, that requirement is directed to the state of mind of the person who made the identification. Thus, the identification evidence is not excluded if the intentional influence, sought to be exerted over the witness, did not have a material effect on the identification by the witness of the accused.
Moreover, s 114(2) requires that the influence having the material effect must be intentional. Clearly, the adverb ‘intentionally’ can only relate to the conduct of the person who exercised the influence, rather than the state of mind of the person who was influenced. Thus, if there were an act of influence by a particular person, that person must have intentionally exerted that influence. That is, the person exercising the influence must do or say something that was intended to have a material effect on the person making the identification of the accused person.
Of course, it is important to keep in mind that s 114(2) does not require an accused person to show that his or her identification was not intentionally influenced. Rather, it requires the prosecution to establish a negative. As we have observed, the requirements of s 114(2) are mandatory, not discretionary. Visual identification evidence is inadmissible unless, in addition to one of the requirements specified in paragraphs (a), (b) and (c) of sub-s (2), the identification was made without the witness having been intentionally influenced to identify the accused. It is for the prosecution to satisfy the Court that the requirements of s 114(2) have been complied with. Thus, visual identification evidence will be inadmissible unless the prosecution demonstrates (among other things) either that: first, there was no intentional influence exerted on the person making the identification to identify the accused; or, secondly, the person making the identification was not influenced to identify the accused — that is, the influence sought to be exerted did not have any material effect on the witness’s identification of the accused.
The requirement in s 114(2), that an identification not be intentionally influenced, has had only very limited consideration in the cases. Indeed, those cases that have dealt with the situation where an identification has been made in the absence of an identification parade after the person making the identification arguably was influenced to identify the accused, have generally turned on s 137 of the Act, not s 114(2).[28] Curiously, given the length of time that uniform Evidence Acts have operated, in only a very limited number of cases have the requirements of s 114 been adverted to.
[28]The Queen v Dickman (2017) 261 CLR 601, 618; Peterson, [25]–[29]; Moreno v The King [2023] VSCA 98, [88] (Priest, Niall and Kaye JJA) (‘Moreno’); R v Smith (No 3) [2014] NSWSC 771, [22].
In one of those cases, To, two witnesses identified the accused in a police line-up. Prior to its conduct, the witnesses were told that there would be a suspect in the line-up. Unsurprisingly, it was held that that information did not contravene the requirement of s 114. Barr J observed:
In my view, to tell a potential identifying witness such a thing would not affect the expectation of that person. Accordingly I do not think that the expectation of [the witnesses] would have been materially different from that of [another witness], who was not told any such thing.[29]
[29]R v To (2002) 131 A Crim R 264, [30].
Another of those cases, Hinder, involved a charge of aggravated robbery upon a Subway store in Manuka on 1 December 2017. The accused’s sister, Greta, made a statement to police to the effect that on 4 December 2017, she viewed CCTV video footage on her Facebook ‘Newsfeed’ which had been posted by the ACT Policing Media Page, and which showed the male alleged to have committed the robbery while he was walking through Manuka and while he was in the store, committing the robbery. On seeing the face of the male in the video, she thought the male was her brother (the accused), and then immediately called her mother Angela and told her that the video footage appeared to show the accused. Subsequently, the mother, Angela, made a statement to the police that, after she received the call from her daughter, Greta, she viewed the video footage, and recognised the male in the footage to be her son (the accused). The trial judge, Burns J, was called upon by the defence to exclude the evidence of identification by the mother, Angela. Holding that the evidence was inadmissible under s 114, Burns J said:
The question whether the evidence of Ms Angela Hinder should be excluded as containing an identification made after having been intentionally influenced to identify the accused is difficult. There appears to be no directly relevant authorities. On balance, I think it should be excluded. The determination of Ms Angela Hinder that the depictions of the offender in the videos resembled the accused was contaminated by the assertion of Ms Greta Hinder that this was the case. Ms Greta Hinder formed her determination with an uncontaminated mind, but Ms Angela Hinder formed her determination in the context of the assertion by Ms Greta Hinder that the person depicted resembled the accused.
I therefore exclude the evidence of Ms Angela Hinder to the effect that the person depicted in the CCTV footage, or photos taken from that footage, resemble the accused pursuant to s 114 of the Evidence Act.[30]
[30]R v Hinder [2019] ACTSC 26, [12].
In the present case, the prosecution must establish on the balance of probabilities[31] that, when the Gibsons each made their identification of the applicant as one of the offenders, no intentional influence had been exerted to identify him, or that any influence sought to be exerted did not have any material effect on their identification of the applicant. We consider that, on the state of the evidence, the prosecution are incapable of doing so.
[31]See s 142(1)(a) of the Act.
To risk repetition, Alison Gibson’s evidence is that, before she looked at the photograph of the applicant on Facebook, she had been told by Luscombe that someone had told her that one of the offenders was the applicant. In cross-examination at committal, she said that Luscombe ‘advised me who the people were and she said that that was Tyson Fowkes’.[32] That is, before Alison Gibson looked at the applicant’s photograph on Facebook, Luscombe had intentionally conveyed to her that the particular offender, whom she had not then identified, was the applicant. In the circumstances, it is plain that Luscombe intended Alison Gibson to accept that information. In turn, Alison Gibson was so affected by it that she looked up the applicant’s Facebook accounts and, having done so, purportedly recognised him as one of the offenders. Thus, as was the case in Hinder, it could not be gainsaid that Alison Gibson had been intentionally influenced to identify the applicant. Nor could it be gainsaid that what was communicated to her by Luscombe had some material effect on her recognition of the applicant’s photograph as a depiction of one of the offenders. The fact that Alison had a good opportunity to view the offender in the course of the offending does not derogate from this proposition. She was told who the offender was, and then looked him up. Accordingly, the evidence of identification of the applicant by Alison Gibson is inadmissible pursuant to s 114(2).
[32]See [14] above.
A conclusion to that effect is even stronger in the case of Jason Gibson. In his second statement, Jason Gibson said that, having been given the name of the applicant, he could not find it on Facebook. His wife then came into the room, showed him her telephone and said, ‘That’s him, isn’t it’. Jason Gibson looked at the photograph and immediately recognised it to depict the offender. In his evidence in the committal proceeding, Jason Gibson said that all four offenders ‘pretty much looked the same’. He further confirmed that, when his wife showed him her telephone, she said to him, ‘That’s him there’. Once more, in those circumstances, it is clear that, when Alison Gibson spoke to her husband, she intended that he understood that the person in the photograph on her telephone was the offender. Furthermore, it could not be maintained that that information, thus conveyed to him, did not have a material effect on the conclusion by Jason Gibson that, when he also looked at the telephone, the person depicted on Facebook was the same person as the offender. In those circumstances, the identification evidence of Jason Gibson is also inadmissible under s 114(2).
It follows from the foregoing that the judge erred in failing to exclude the identification evidence of Alison and Jason Gibson under s 114(2). The first ground is thus made out.
Given our conclusions on ground 1, it is unnecessary to consider ground 2 (a complaint that the judge reversed the onus of proof when dealing with the issue of intentional influence).

Ground 3: Was the evidence inadmissible under s 137

As we have mentioned,[33] many of the decided cases in which it has been claimed that an identification has been influenced have turned on the application of s 137 of the Act.
[33]At [55] above.
A recent example is Moreno. In that case, the applicant was charged with murder. The victim was shot dead by one of several disguised intruders attempting to enter the premises where the victim had been seated (‘the Lalor incident’). Another person present at the premises, ‘LT’, purported to recognise the applicant as the intruder who fired the fatal shot. He claimed that the relevant intruder had attempted to rob him and a friend, ‘DP’, at gunpoint several weeks earlier, in the course of a drug deal (‘the Roxburgh Park incident’). The prosecution sought to adduce evidence from LT that he recognised the armed intruder who shot the victim as the man who had ‘pulled’ a firearm on him about three weeks previously. Pre-empanelment, the applicant applied to the trial judge to exclude LT’s ‘recognition’ evidence under s 137 of the Act. That application was rejected, and the applicant sought leave to appeal the judge’s refusal to exclude the evidence. No reliance was placed on s 114(2), either before the trial judge or in this Court.
The facts of Moreno included that, due to the armed intruder’s disguise, LT had only a limited view of the intruder’s eyes, nose and hair. He had only a suspicion that the intruder was the same man who had pulled a gun on him weeks previously, when DP showed him a Facebook photograph of the applicant in a context that plainly suggested that the person depicted was involved in the Roxburgh incident. LT then put ‘two and two’ together. When he was shown the photograph of the applicant, the image confirmed in LT’s mind that the applicant was the person involved in the armed robbery. He did not connect the photograph with any visual recollection he had of the person at the front door of the premises during the Lalor incident.
In Moreno, the Court discussed at some length the principles to be derived from the authorities relevant to the application of s 137,[34] an exercise that we need not repeat. For a variety of reasons, the Court considered the quality of LT’s recognition evidence to be ‘poor’ and its probative value to be ‘low’.[35] Importantly, in concluding that the evidence should have been excluded, the Court was of the view that the probative value of the evidence was outweighed by the risk of unfair prejudice, because of the dangers lurking in the evidence. The Court said:[36]
In our view, the poor state of the evidence as to what image [LT] was shown, how it was selected and what he was told is a critical gap in the evidence. The prosecution seeks to prove recognition or identification evidence but are not in a position to adduce critical evidence about the circumstances in which the recognition occurred. The applicant is significantly hampered in his ability to expose the sequence of events. It is true that the poor state of the evidence may leave the jury unpersuaded about the identification evidence. However, there is a real risk that the jury will fasten on the conclusion (that [LT] recognised the shooter) without proper regard to the infirmity of the evidence and the inability of the applicant to establish a firm factual footing to contend that the evidence is affected by displacement or suggestion.
Generally, the risk of displacement goes to the probative value of the evidence rather than prejudice, however there will be prejudice if by reason of the facts an accused person is restricted in his or her ability to point to a factual foundation for the submission. Often the facts will be revealed by questions to the investigators who selected and provided images to the witness to view. Here the process by which [LT] came to view the image of the applicant is heavily compromised. Further, there is a logical connection between the two incidents. It appears from the evidence that [LT] retained the firearm that was used in the Roxburgh Park incident. Further the jury will know that the applicant and [one of the robbers] were stabbed in the incident thus giving rise to a motive for a return attack. There is a real risk that the jury will elide the logical connection between the two incidents and the identification evidence to conclude that the shooter must have been the applicant. And the applicant will remain hampered in his ability to adduce evidence to undermine the identification evidence. The process by which [LT] came to view the Facebook page was accompanied by none of the safeguards that protect against suggestion and influence.
In our opinion the prejudice to the applicant is substantial. We do not consider that the risks of suggestion and displacement, which will not be capable of being fully exposed in the evidence, can be adequately ameliorated by judicial direction. The inability to effectively and comprehensively expose the dangers lurking in the evidence generates a special prejudice which cannot adequately be guarded against by judicial warning or direction. In those circumstances, the risk of unfair prejudice clearly outweighs the probative value of the evidence, which, as we have indicated, is low.
[34]Moreno, [50]–[81].
[35]Ibid [82]–[94].
[36]Ibid [102]–[104] (emphasis added).

Had an appeal to s 137 been the only basis upon which the identification evidence of the Gibsons was challenged, we would not have held the evidence to be inadmissible.
In determining the probative value of the identification evidence for the purposes of s 137, it is necessary to assume that the evidence of Alison Gibson and Jason Gibson is both credible and reliable.[37]
[37]IMM, 312–315 [38]–[52].
That qualification does not dictate that factors affecting the initial observation of the offender by the two witnesses are not relevant to an assessment of the probative value of that evidence.[38] Further, as Dickman makes clear, the factors which may be taken into account in determining the probative value of the evidence include the circumstances that attended the later process of identification of the offender by Alison Gibson and Jason Gibson.
[38]IMM, 315 [50]. See also Bayley, [97]; Moreno, [68].
In this case, two material factors attended the process of identification undertaken by Alison Gibson and Jason Gibson. First, as we have said, Alison Gibson had been told by Luscombe that the applicant was one of the four offenders. Armed with that information, Alison Gibson then looked at the applicant’s image on Facebook, and undertook the process of comparing that image with the recollection she had of the image of the offender in question. That process significantly undermined the probative value of her identification of the applicant. Even more significant was the process by which Jason Gibson undertook his identification. He was not only told that the applicant was the offender, but his wife showed him the image of the applicant on Facebook, and said to him, ‘That’s him there’.
Secondly, the process of Facebook identification, which is a burgeoning phenomenon, has a number of inherent limitations, including those discussed by Peek J in Strauss.[39] In the present case, the image was of a single person — the applicant. As a photograph, it was two-dimensional. Moreover, the whole process lacked the safeguards that attend a properly conducted identification parade.
[39]See [48] above.
Taking those factors into account, we consider that the probative value of the Gibsons’ identification evidence would, at most, be moderate.[40] And we consider that such probative value that it possesses is not outweighed by the risk of unfair prejudice.
[40]See [22] above.
It is clear that, notwithstanding the absence of any evidence from Luscombe, the influence that Luscombe had on Alison Gibson’s identification of the applicant, and the influence that Alison Gibson had on her husband’s identification, were capable of being fully exposed. Indeed, as the evidence currently stands, that influence is patent. Moreover, we consider that any dangers attending the evidence would be amenable to adequate amelioration by judicial direction.
There are, however, two particular aspects of potential prejudice which would attend the admission of the identification evidence in the trial. First, there is a risk that, uninstructed, the jury might not fully appreciate the limitations, and potential frailties, of Facebook identification, and might not give appropriate weight to the displacement effect of such identification. Juries are, however, commonly directed as to the nature, and risk, of the displacement effect in the process of identification. The directions are not overly complex, and, so experience would suggest, are well understood by juries. Accordingly, of itself, such a prejudice could be appropriately addressed by careful directions given to the jury.[41]
[41]Cf Roe, [62].
The second item of potential prejudice is that, in order for the jury to understand and evaluate the identification evidence, Alison Gibson would need to give evidence concerning the comment made to her by Luscombe. In the absence of appropriate direction, that evidence would have an unfair prejudicial effect on the applicant’s case. It is not unusual, however, for trial judges to be required to explain to a jury how it may not use hearsay evidence of the kind that would be given in relation Luscombe’s comments. Once more, such directions are not complex, and, experience shows, are well understood by juries.
In those circumstances, although the probative value of the identification evidence is somewhat limited, we do not consider that there is a risk that it would be outweighed by the risk of unfair prejudice.
Insofar as it rests on s 137, ground 3 cannot succeed.

Conclusion

We would uphold the first ground; grant leave to appeal; allow the appeal; and set aside the interlocutory decision.
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[2023] VSCA 160

6 July 2023