Fowkes v The King

Fowkes was charged with a serious offence of armed robbery. The applicant was identified by two witnesses, Alison Gibson and Jason Gibson, after they had viewed his Facebook profile. They had previously had a conversation with another person who had identified the applicant as the offender. The trial judge refused to exclude the identification evidence from being admitted at trial, which led to the applicant seeking leave to appeal. The appeal was allowed, and the identification evidence was excluded.

The legal issues in this case were whether the identification evidence obtained from Facebook photographs was admissible under section 114(2) of the Evidence Act 2008 and whether the evidence should be excluded under section 137 of the Evidence Act 2008. Section 114(2) of the Act states that visual identification evidence adduced by the prosecutor is not admissible unless certain conditions are met. In this case, it was common ground that s 114(2)(b) applied, and therefore, the identifications must have been made without intentional influence. The court had to consider whether the witnesses had been influenced in any way by the conversation they had with the other person who had identified the applicant as the offender.

The court held that the identification evidence should be excluded as it was likely that the witnesses had been influenced by the conversation they had with the other person. The court found that the witnesses' identifications of the applicant were made without them being intentionally influenced to identify the applicant as the offender, but the court held that the evidence should still be excluded under s 137 of the Evidence Act 2008. The court found that the probative value of the evidence was outweighed by the risk of unfair prejudice to the applicant.

The court's decision was that the identification evidence should be excluded. The appeal was allowed, and the identification evidence was excluded.