Fowkes v The King

[2023] VSCA 160

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

1. 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).

2. 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.

3. 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.

4. 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.

5. 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…