Hirst v Police

[2005] SASC 201

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

HIRST v POLICE

Judgment of The Honourable Justice Gray

2 June 2005

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT

CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE - MODES OF PROOF - IDENTIFICATION FROM PHOTOGRAPHS

Appeal against convictions - appellant convicted on four counts of indecent assault, four counts of indecent behaviour and one count of gross indecency - offending involved acts of indecency and assault committed against young women on numerous occasions at a public park in suburban Adelaide - Crown case at trial based upon identification evidence provided by the complainants - identification evidence included evidence adduced through photographic identification procedure - appellant appealed conviction on grounds that magistrate erred in failing to exclude photographic identification evidence and this amounted to a miscarriage of justice - consideration of photographic identification procedure employed - consideration of nature of identification evidence - discussion of dangers associated with use of photographic identification evidence - consideration of cross admissibility of identification evidence between counts - held: photographic identification ought to be considered in the context of the evidence as a whole - magistrate correctly directed himself to the dangers associated with the evidence - findings of the magistrate open on evidence - appeal dismissed.

Criminal Law (Consolidation) Act 1935 (SA) s 56, s 58; Summary Offences Act 1953 (SA) s 23(1)(a), referred to.
Domican v The Queen (1992) 173 CLR 555; Alexander v The Queen (1981) 145 CLR 395; Hoch v The Queen (1988) 165 CLR 292; Sutton v The Queen (1984) 152 CLR 528; Rowald v Police (2001) 79 SSR 569; Davies and Cody v The Queen (1937) 57 CLR 170; Festa v The Queen (2001-02) 208 CLR 593 at 603; Hallam v Karger (1985) 42 SASR 126; R v Wenzlaff [2004] SASC 233; R v Deering (1986) 43 SASR 252; Pitkin v The Queen (1995) 69 ALJR 612; Knight v Brown (2004) 183 FLR 137; Chamberlain v The Queen (1984) 153 CLR 251, considered.

HIRST v POLICE
[2005] SASC 201

Magistrates Appeal

GRAY J

Introduction

1. This is an appeal against conviction.

2. The appellant, Benjamin Craig Hirst, faced trial[1] on four counts of indecent assault,[2] five counts of indecent behaviour[3] and one count of gross indecency.[4]  The appellant pleaded not guilty to all counts and a joint trial proceeded before a magistrate.  The issue at trial was identification.

   [1] Other charges were not pursued

   [2] Contrary to section 56 of the Criminal Law (Consolidation) Act 1935 (SA)

   [3] Contrary to section 23(1)(a) of the Summary Offences Act 1953 (SA) (Offence now contained in section 7 of the Summary Offences Act)

   [4] Contrary to section 58 of the Criminal Law (Consolidation) Act 1935 (SA)

3. On 1 December 2004 the appellant was convicted of four counts of indecent assault, four counts of indecent behaviour and one count of gross indecency.  The magistrate found the appellant not guilty of the remaining count of indecent behaviour.

4. The submissions on appeal centred on the photographic identification evidence led at trial.  It was said that the evidence should have been excluded as a matter of discretion.  The principal contentions were that there had not been an identification parade, that no explanation was offered as to the removal of a photograph from photo-boards prepared by the police for use in the photographic identification process, and that the removal of the photograph caused prejudice affecting the evidence of many of the complainants.

   The Prosecution Case

5. It was the Crown case that the appellant was the person responsible for the offending conduct the subject of the charges.  Identification became the key issue at trial.  During cross-examination defence counsel did not challenge the account given of the offending conduct, concentrating instead on identification.  The appellant denied in evidence that he was the assailant in any of the incidents giving rise to the charges.

6. The Crown’s case in relation to identification was largely circumstantial.  Although the photographic identification evidence was a major component of the Crown case, it would devalue the remainder of the Crown identification evidence to suggest that the outcome of the trial and appeal turns solely upon the acceptance or exclusion of the photographic identification evidence.  The photographic identification evidence formed an important part of a body of evidence that, on the Crown case, identified the appellant as the assailant.

7. All offending took place in or around Linear Park, a public park stretching across numerous metropolitan suburbs in Adelaide.  The offending occurred during mid to late afternoon and typically involved an assailant, whilst jogging, exposing himself to women, and hugging or touching the women.  Other offending involved the assailant masturbating in front of some of the complainants.

8. The offending conduct occurred between 1 April and 14 July 2003.  During this period the appellant resided with his parents at Beaverdale Avenue, Windsor Park, within close proximity to Linear Park.  At trial the appellant accepted that during this period he had been involved in the sport of running and had engaged in regular training runs along Linear Park.  These training runs would commence between 4.30pm and 5.30pm.  The defendant denied any involvement in any of the offences.

   The Offending Conduct

9. The offending that occurred on 1 April 2003 was reported to the police by complainant ZL.  She was in the habit of walking her dog in Linear Park and did so at around 6pm on 1 April 2003.  She noticed a man jogging in the opposite direction.  As ZL started to move to the other side of the river across some stepping stones, she felt two hands around her waist and on her bottom.  The man touching her asked if she was “okay” and she replied that she was.  She began walking faster.  The man continued to follow her.  She noticed that he had his hands down the front of his shorts and appeared to be masturbating.  ZL felt scared and continued to walk quickly to get away.  The man blocked her path and said “Can I have a hug”.  He then grabbed her and began thrusting his body against hers, breathing heavily.  ZL was in shock and asked him to let her go.  She managed to free herself and ran to a neighbour’s house and reported the matter to the police.

10. ZL described the man as about 25 years of age and around five feet seven to five feet eight inches tall.  She said he was of medium to slim build with dark hair, shorter on the sides than on the top, with bleached blond tips.  The man had no facial hair and his voice was slightly slurred and broken.  ZL described the man’s clothing as a dark or black singlet, and silver or grey jogging shorts with white stripes on each side.

11. It was the Crown case that ZL’s description of the assailant was consistent with the appearance of the appellant at the time the offending conduct took place.  It was said that ZL’s description of the clothing worn by the assailant was consistent with clothing located at the appellant’s home.  ZL told the police that she had seen the same person jogging in the same area about six months previously.  She said at that time the man had stopped and spoken to her but had not done anything inappropriate.  She recognised that man’s voice as the same as the assailant’s on 1 April 2003.

12. The offending that occurred on 15 May 2003 was reported by complainant AP.  She was walking in Linear Park near Paradise at about 5.05pm when she saw a man sitting on a park bench.  When she was about 300-400 metres down the path the man she had seen on the bench ran past her, faced her and said “Hi”.  He then pulled his shorts to one side, exposed his penis and began masturbating.  AP screamed and ran away.  The man ran in the opposite direction.  She described the man as having short dark brown hair with blond streak marks at the front.  She said he was of athletic build, around five feet eight inches tall, clean-shaven and of Caucasian appearance.  She estimated his age to be in the early thirties.

13. Offending that occurred on a day between 26 May and 5 June 2003 was reported by the complainant EN.  She was walking in Linear Park near Felixstow at around 4.30pm that day.  She recalls seeing a man jog past her and sit down.  She continued to walk past.  The man said “Hi”, she replied “hello” and kept walking.  She turned back and saw the man masturbating with his penis exposed.  She reported the matter to the police that day.  EN described the man as about 25 years old and of athletic build.  She described his hair as brown, longer at the top with lighter tips.  She said the man was wearing jogging apparel.  Approximately one week later, EN reported that she saw the same man jogging while she was at a bus stop on OG Road, Klemzig at about 5.30pm.  She said she and the man made eye contact for a couple of seconds.

14. The offending that occurred on either 14 or 15 June 2003 involved the complainant ME.  At about 3pm ME was riding her bicycle along Linear Park, St Peters in the direction of the city.  She saw a man sitting under the bridge as she rode past.  When she was about two metres away she saw the man place his hand in his genital area.  She yelled out “You’re disgusting” and continued riding.  As she did so she noticed a shadow on her left side and then saw the same man running alongside her.  He said something and grabbed her bottom.  ME told him to “fuck off”.  The man then backed away.  ME rode away.  She reported the matter to the police a week later after reading a media release.  She described the man as in his early 20s, Caucasian, slightly tanned and well toned with dark hair cropped short.  She said he was wearing running shorts.

15. The offending that occurred on 29 June 2003 involved the complainant DS.  She was riding her bicycle on the Linear Park bike track at Paradise at about 4.40pm.  She slowed as she began ascending a rise.  As she did so she felt a hand on her bottom.  She turned around and saw a young man in a jogging outfit.  He said “Would you like a push”. She replied “No, it’s all right.  I am okay, thank you.”  The man took his hand away.  DS continued having difficulty peddling.  The man then placed his hand on the bicycle seat and her bottom and said “Come on, let me give you a push”.  As she turned towards him, the man placed his hand on her groin area and pressed down.  She asked him what he was doing.  The man then smiled, turned and walked away.  DS described the man as in his mid 20s with short dark hair and a few centimetres taller than her height of 165centimetres.  She said he had no facial hair, was of athletic build and smart in appearance.  She described the man as wearing a baseball cap, a long-sleeved jogging top and long jogging pants.  She described the man as speaking “a bit too slowly, almost a little dim-witted”.

16. The offending that occurred on 5 July 2003 involved complainant VG.  At about 1.30pm VG was walking her dog in Linear Park near Campbelltown when she heard footsteps behind her.  A male jogger approached her and asked her how she was going.  VG then observed him masturbating as he walked beside her.  She screamed and the man ran off.  She reported the matter to the police the same day.  VG described the man as Caucasian, about six feet tall and of medium to slim build.  She said he was quite clean cut with short brown hair and appeared to be in his early 30s or late 20s. 

17. DW was the complainant involved in offending that occurred on 7 July 2003.  At about 3.30pm on 7 July 2003 DW was walking her dog along Linear Park near Althestone.  She saw a male jogger sitting on an electricity box about three metres away.  She observed him to be masturbating.  She walked past him and away from the area.  She reported the matter to the police about a month later after seeing an article in the paper with a photo identikit.  DW described the man as Caucasian, about 25 years of age, about six feet tall with short dark hair.  She said he was wearing running clothes.

18. The offending that occurred on 8 July 2003 involved five young complainants, TP, JO, MH, SN and SA.  The girls were school friends attending JO’s birthday party at her house near Linear Park.  They walked together to the park to play with their bikes and scooters.  A male jogger appeared in front of them about few metres away.  The man exposed his penis through one of the legs of his shorts.  He appeared to be playing with his penis.  The girls ran to JO’s house, reported the incident to her mother and then to the police. 

19. The offending that occurred on 14 July 2003 involved the complainant OL.  At about 1.30pm OL was riding her bicycle along Linear Park.  As she approached a steep rise she dismounted.  She saw a man running about 10 metres away.  As she walked her bicycle up the hill, the man approached her, grabbed the back tyre of her bicycle and asked her what she was doing and where she was going.  OL replied “Leave me alone”.  She tried to pull the bicycle away.  The man pushed the bicycle.  OL fell to the ground with the bicycle on top of her.  She picked herself up and began walking away with her bicycle.  The man then slapped her on the bottom.  She turned around and saw the man pulling his pants down and exposing his penis.  He was about one metre from her.  OL continued to move away.  The man continued to approach her and touched her around the waist and breasts.  OL freed herself, crossed the road and rode away on her bicycle.  She reported the matter to the police within an hour or so.

    Complainants’ Descriptions

20. Counsel for the Crown drew attention to DS’s opportunity to observe her assailant at the time of the offending.  The offence occurred at about 4.40pm in daylight.  She stated that she had a “good look” at the assailant.  Their contact was sufficient for her to provide a description of his clothing.  The assailant spoke to her.  DS noticed that the assailant was smiling and wearing a cap. 

21. Numerous complainants gave similar descriptions of their assailant, including the following:

    -    ZL - about 25 years, medium to slim build, short dark hair that was shorter on the sides than on the top.  Bleached blond tips in his hair as well.  5”7 –5”8, no facial hair.  Speech slightly slurred and broken slightly.

    -    AP - 30-mid 30s, streaks were burnt orangey yellow in front of hair, good hair cut, dark brown/black short hair, runner’s build, someone who exercised, clean shaven;

    -    EN - 25-30 years, very athletic build, white, brown hair that was longer on the top with lighter tips.  The tips were a couple of shades lighter than a normal brown, not blond;

    -    ME - early 20s, well toned build, Caucasian, slightly tanned, short dark hair, like cropped kind of short hair, clean shaven;

    -    DS - mid to late 20s, short very dark hair, Caucasian, athletic build, looked like a jogger who kept himself in shape, difficult to estimate height but probably a few centimetres taller than 165cm, don’t think there was any facial hair, smart appearance.  Wearing baseball cap, voice was slow, almost a little bit dim-witted;

    -    VG - late 20s – early 30s, Caucasian, my height or a bit taller (6ft) medium sort of slim build, no facial hair, dark brown short hair, clean cut hair.  The voice was very hushed and quiet.

    -    DW - about 25 years, Caucasian, around 6ft, short dark hair.  Medium tone skin colour, athletic appearance.

    -    TP - in his 20s, white skin, average height, kind of muscly, brown hair;

    -    JO – light pink colours skin, dark brown hair, spiky a little bit, hair 5 to 7 centimetres long, between 5 and 7 feet tall.  Bushy eyebrows;

    -    MH - probably late 20s, average height, muscular thin build, white skin with tan, blackish brownish hair, normal boy length cut hair;

    -    SN - early 30s, white skin, can’t recall hair.

    -    SA - white skin, dark brown hair, about 30 years, normal height;

    -    OL - about 25ish years, taller than me, big shoulders, very fit, very athletic, lighter than olive skin.  Caucasian, dark brown hair.

22. Three complainants referred to the assailant as wearing white striped jogging shorts.  Shorts fitting this description were located in the appellant’s house.  Five complainants referred to the assailant as having blue or dark coloured shorts.  Dark coloured blue shorts were located at the appellant’s premises.  Three complainants recalled the assailant as having blond or orangey yellow tips in his hair.

23. As earlier observed, at trial the appellant agreed that he had blond tips in his hair some time around the time this offending took place.  He was 24 years old at the time of the offending.

    The Identikit

24. When OL reported the incident to the police, a composite colour photograph of the suspect was produced from the description she provided of her assailant.  A media release was then prepared describing the police investigation of the incidents in Linear Park involving sexual assaults on young females and indecency offences.  As a result of media coverage, and the publication of the composite colour photograph, KM contacted the police and provided information that led to the appellant becoming a suspect.

25. KM gave evidence that the composite photograph bore a striking resemblance to a man she had spoken to several times in Linear Park.  She had said hello to the man several times between 1999 and 2002 when she would walk along the bicycle track.  On one occasion the man asked to meet her in the park later in the evening.  KM refused his invitation.  On another occasion she had a conversation with the same man who introduced himself as “Ben” and the two exchanged telephone numbers.  She recorded his mobile number in her mobile telephone.  She recalled seeing the same person at a job interview in either 2001 or 2002.

26. On 23 July 2003 KM provided Detective Clarke with the name “Ben” and the mobile telephone number she recorded.  She was shown a photo-board of 12 photographs.  Without hesitation, she selected photograph number two from the photo-board as the man she knew as “Ben”.  This was a photograph of the appellant.  This identification process was recorded on video.  That video was tendered at trial as exhibit P2.

    An Identification Parade

27. On 23 July 2003 police attended the house of the appellant for the purpose of interviewing him in relation to the incidents outlined above.   A video recording was made of this interview and a transcript was produced from that recording.  The following exchange took place between a police officer in attendance and the appellant:

    Police officer:      We may need you to participate in a line-up an [sic] identification parade, would you be prepared?  Would you be prepared to?

    Appellant:           No, my lawyer told me last time not to.

28. The police officer later confirmed his notes of this exchange with the appellant:

    Police officer:      Okay now I asked you and I refer to that in the notes I asked you if you were prepared to go into an identification parade a line of people so witness can look at you in that line to identify you and you indicated then and there that you didn’t want to is that still the case.

    Appellant:           No I don’t want to go in a line-up cause my lawyer says not to do that …

29. The evidence that the appellant was invited to participate in an identification parade but refused, was not challenged.

    Clothing

30. A number of items of clothing were seized from the appellant’s home.  These items can be described as follows:

    -    A dark blue sweatshirt with the words “Nike Athletic” printed across the chest in white lettering;

    -    A pair of blue, white and yellow “Asics” sneakers;

    -    A pair of blue and black “Span Triax” sneakers;

    -    One blue t-shirt of a nylon material with a small white “Nike” trademark symbol located near the neck of the shirt;

    -    A blue and black t-shirt of a nylon material with a small black “Adidas” trademark symbol located near the neck of the shirt and on each sleeve;

    -    One black t-shirt of a nylon material with a small white “Nike” trademark symbol located near the neck of the shirt and five small white dots located on one sleeve;

    -    A pair of black running “track pants” of a nylon material with white vertical stripes down each leg beginning at the waist and ending just after the knee and a small white “Nike” trademark symbol located towards the bottom of one leg;

    -    A pair of black running shorts of a nylon material with white vertical stripes down each leg;

    -    Five pairs of blue running shorts of a nylon material each with white stripes down each leg;

    -    A pair of bright blue running shorts; and

    -    A blue baseball cap with the logo “FB” in blue and white lettering on the front and side and a black and red motif on the rear.

    It was the Crown case that these items were consistent with the descriptions provided by the complainants of the clothing worn by the assailant.

    Photographic Identification by DS

1. On 23 July 2003 DS, a victim of the offending on 29 June 2003, participated in a photographic identification process.  This process was videotaped.  She was shown a photo-board exhibit P22 containing a photograph of the appellant at position three.  On the Crown case, this was an old photograph of the appellant.  DS made the following comment in relation the photographs in the pack:

   [W]ould say no. 4 is the greatest likeness but not convinced it is him.  It’s hard cos it’s a few weeks ago.

   …

   I’m torn between no. 3 and no. 4.  I think it is the way he looks in the photo, I didn’t know if it is cos he has a slight smile on his face and that is the way the offender looked at me.

   …

   Complexion of no. 3 is more like offender – if photo 3 was smiling it would be like offender -  his eyes, but nose is not quite right.  Offender looked darker and that is why.

   On 24 July 2003 the appellant was arrested and photographed.

2. On 26 July 2003 DS participated in a further identification process.  She was shown a different photo-board, exhibit P24, which included at position two the photograph taken that day of the appellant.  Photographs at positions three and four on the previous photo-board, exhibit P22, were not included in this photo-board, P24.  Those photographs were replaced by photographs of other persons. DS indicated photograph two, the photograph of the appellant, as the assailant and made the following comment:

   [I chose photograph 2] largely because of the eyes.  Look similar.  The mouth looks familiar.  Same shape of face.  Hair is the right colour, not quite the way I remember it.  He had a cap on, I think I had an idea, he had quite short hair.  …

   Photographic Identification by Other Complainants

3. All of the complainants were separately shown photo-boards (exhibits P23 and P24) containing a photograph of the appellant amongst others and asked to identify, if possible, their assailant.  Each of the complainants selected a photograph of the appellant as their assailant. 

4. The comments accompanying their selections included:

   [Z L]– the face, it was the same for the incident in early April

   [AP] –absolutely recognised the perpetrator

   [EN] – person from photo-board is the offender and not just similar to the person that exposed himself.

   [DS] – I picked out the face in the second group of photos because it looked remarkably like the man that assaulted me

5. The magistrate summarised the results of the photographic identification process as follows:

   On 27 July 2003, Detective Clarke conducted a photo identification with the first victim, [ZL] using one of the photographic identification packs, and after having looked at the folder of photos, she immediately identified photograph number 2 as the person involved in her incident; which of course was a photograph of the defendant.

   [AP] … after looking at the photographic pack chose photograph number 2 without much hesitation.  This was a photograph of the defendant.

   [EN] … chose photograph number 3 of the photographic pack shown to her because of his eyes and top part of the face.  This was a photograph of the defendant.

   [ME] …picked out photograph number 2 from the photographic pack shown to her because of the face structure, eyebrows and hair.  This was a photograph of the defendant.

   [VG] … picked photograph number 3 from the photographic pack shown to her.  She was definite about the fact that the person depicted in photograph number 3 was the person involved in the incident with her.  This was a photograph of the defendant.

   With the young schoolchildren …, photographic identifications were carried out individually with each of those children as follows:

   -     [MH] chose photographs 2 and 9 from the photographic pack shown to her.  Photograph number 2 was a photograph of the defendant.

   -     [SN] picked photograph number 2 from the photo pack shown to her.  This was a photograph of the defendant.

   -     [SA] was not able to identify any of the photographs.

   -     [JO] picked out photograph number 2, which was a photograph of the defendant.

   -     [TP] picked photograph number 3 from the photo pack shown to her, which was a photograph of the defendant.

   [OL] picked out photograph number 2 immediately after having looked at the photographic pack.  This was a photograph of the defendant.

   [DW] … had no hesitation in picking out photograph number 2 from the photographic pack shown to her.  This a photo of the defendant.

   The Defence Case

6. At trial it was the defence case that the appellant was not the assailant responsible for the incidents described above.

7. The appellant gave evidence on oath.  He was 24 years old at the time of the alleged offences and lived with his parents within close proximity to Linear Park during the relevant period.  He had been involved in the sport of running for many years and engaged in training runs along Linear Park frequently during the relevant period.  These runs would usually commence between 4.30pm and 5.30pm.

8. Although the appellant denied all of the charges.  However, he recalled meeting and exchanging words and telephone numbers with KM in Linear Park.  He could not recall what he was doing on any of the dates mentioned in the charges except for those dates mentioned in an alibi notice.

9. During the trial, the appellant referred to an alibi notice filed at the commencement of the trial.  The magistrate summarised the relevant aspects of the alibi evidence as follows:

   29 June 2003, … involving [DS].  He says that it was a Sunday and that his parents had organised a Christmas party for the Saturday night, 28 June 2003.  The defendant had gone out with friends and did not return home until 1 or 2 a.m. on Sunday, 29 June 2003.  He got up about lunchtime and after having lunch, went back to bed again and did not get up until about 4 or 5 pm.  He then went for a run and was not sure of what time; it could have been 4.30, 5 or 5.30pm.  What assisted him to remember that date was his mother’s calendar on which she wrote all the events she considered important for the family.  The times stated by the defendant, however, seemed to fit with [DS]’ evidence that the incident occurred about 4.40pm.

   Another date that the defendant remembered was 5 July 2003, which relates to count 8 involving [VG].  He said that during that afternoon, he hung around the house, reading and working on his computer.  His parents were due to go to his Uncle’s house for dinner that night, so he had to wait for them to finish with the bathroom before he could get ready to go for his usual run.

   [VG] gave evidence that the incident with her happened about 1.30pm.  During cross examination the defendant conceded that he had not specific recollection of the date in question and that he was purely guessing the times based on his normal practice.

   This relates to [the incident involving ME].  The defendant gave evidence that during that weekend of 13, 14 and 15 June 2003, he stayed over at his girlfriend’s place ... for the whole weekend at Reynella, which is south of Adelaide.  They had met in about April 2003, and he would spend most weekends with her.  On this particular weekend, it was her sister’s birthday on the Saturday night, 14 June 2003.  He said he went to his girlfriend’s house on Friday night, 13 June 2003.  He was not sure what time he arrived there, but that he stayed there the night and that on Saturday, he got up late at about 2 p.m. and his girlfriend and others left the house to organize costumes for the fancy dress birthday party that night.  They all eventually left for the party about 7 p.m.  The defendant returned to his girlfriend’s house at 1-2 a.m. the next morning, Sunday 15 June 2003.

   That Sunday, he got up late, about 12.30 to 1 p.m. and as his girlfriend’s flatmate, Jason Bommer had left his motorbike at [his girlfriend’s sister’s] house from the party the night before, the defendant gave Mr Bommer a lift to her place at Marion on his way home to his parent’s house at Windsor Gardens.  He estimated that he arrived home at about 2.30 p.m. that Sunday.  He believed that he went running later that day at about 4-5 p.m., but he had no specific memory of it.

10. At trial the appellant described his usual running attire as including a white baseball cap, t-shirts that were either white, black, navy blue or grey and a Timex watch.  The appellant’s mother gave evidence that when running the appellant would usually wear, dark navy blue shorts with a white panel on each side, various t-shirts - white, dark navy one with a v-neck and a Nike logo, black with grey panels over the shoulder - a white hat; and a running watch.  The appellant’s father described the appellant’s usual running attire as dark coloured shorts, dark coloured t-shirt or sometimes a white t-shirt and a white cap.  The appellant said that for a period during 2003 he had blond tips in his hair.

    The Magistrate’s Conclusions

11. As earlier observed, on 1 December 2004 the appellant was convicted of four counts of indecent assault, four counts of indecent behaviour and one count of gross indecency.

12. The magistrate found the appellant not guilty on one count of indecent behaviour.  That count related to a complainant MLM.  The magistrate observed:

    [MLM] came forward after having seen the media release and the composite photograph and reported that incident to the police.  I note that her evidence about the offender involved in that incident does not fit the defendant’s characteristics and also the description given by the other victims.  She did not see what the person was doing in the bushes except that his hand was on his crotch and seemed to be stroking something.  She was not able to positively identify the person from photographic identification.

    I therefore conclude that the offence  ... has not been made out and I dismiss the charge.

13. The magistrate identified a key issue at trial as follows:

    On the evidence before me it is quite plausible that the defendant was running along the Linear Park on the dates and the times in question.  However, the question is, was he the male jogger responsible for the events the subject of the various charges?

14. The identification evidence relied upon by the prosecution was the subject of the following comment:

    The only evidence to that effect is the evidence of the victims, and in particular, their identification of the defendant - made sometime after the events – from viewing the photographic packs of 12 photos.  The prosecution’s case is based entirely on the description provided by the victims of the person involved in each of the offences and their photographic identification of the defendant as that person.

    The description of the clothing worn by the offender on each occasion is inconclusive, save that on each occasion, the person in question wore jogging apparel.  The description of the physical characteristics of the offender and the voice fit the defendant, but again per se would not be conclusive.  What we have left is the photographic identification.  The prosecution would allege that on every occasion the victims have picked the defendant from a photographic identification process as the perpetrator of the offences in question.

15. The magistrate considered the need for caution when dealing with identification evidence.  He referred to the High Court decisions of Domican[5] and Alexander[6].  In particular, the magistrate noted the desirability of conducting an identification parade in preference to a photographic identification process:

    In the case before me, no explanation appears to have been provided for not following that proper procedure and arrange for an identification parade, especially after having received the information from [OL] which led to the creation of a composite photograph which resulted in [KM] coming forward with information that led to the defendant and his subsequent arrest.  However, as stated in Alexander’s Case, it is in the court’s discretionary power to admit or exclude evidence of identification obtained by other methods other than the normal identification parade.

    [5] (1992) 173 CLR 555

    [6] (1981) 145 CLR 395

16. It was accepted by counsel for the appellant on appeal that the magistrate erred in finding that no explanation had been provided for the failure of the police to conduct an identification parade.  The evidence of the police request and the appellant’s refusal has been referred to earlier.  On appeal it was accepted that the appellant was invited but refused to participate in such a parade.

17. The magistrate acknowledged the need to consider the photographic identification evidence with “scrupulous fairness” and “great caution”.  With respect to DS’s photographic identification he observed:

    … [DS] was shown a photo pack of 12 photos (Exhibit P22) and she made the first choice of photograph number 4, NOT the accused; and second choice photograph number 3, a photo of the accused.  Then at a later date, she was presented with a second photo pack of 12 photos with new photographs and she then chose photograph number 2 in that pack; a photo of the accused.

    The explanation given by Detective Clarke was that the photo of the accused in Exhibit P22 was several years old and since there was a recent photo of the accused available as a result of the charging process, then it was only fair that a more recent photograph of the accused be included in the photo pack.  That does not explain though, why, photograph number 4 being [DS]’s first choice in Exhibit P22 was deleted from the new photographic packs, Exhibits 23 and Exhibits P24.  [Counsel for the defendant] then argues that this change resulted in prejudice and unfairness to the accused.  The reasonable possibility remains open that had the photos not been changed, that the other witnesses could have made the same first choice as [DS] did.  That then taints all of the identification processes, thus operating unfairly against the accused, and he urged me to exercise the court’s discretion to exclude such identification evidence.

    In the case of [DS], the second identification process may have resulted in the so-called ‘displacement effect’, referred to by Stephen J in Alexander’s case, however, as far as the other identification processes, there is nothing to stop the investigating officers using different photo packs for each of the witnesses so long as in each case there is no prejudice to the accused.

18. The magistrate considered the strength of the photographic identification when having regard to the surrounding evidence of the identity of the assailant provided by the complainants:

    What I considered to be a significant factor in the evidence of [OL] was that in addition to the photographic identification, she was originally able to provide a detailed description of the offender to the police; so much so that a composite photograph was created, which had a remarkable resemblance to the defendant.  Then, when she undertook the photographic identification, she immediately picked photograph number 2, which is a photograph of the defendant.

    The majority of the witnesses did not demonstrate any hesitation in picking out a photograph of the defendant (from the photo packs shown to them) as the perpetrator of the particular offence in question.  Notwithstanding the inherent dangers of identification evidence of the type I was dealing with here, a review of the material before me, including the cross-admissibility of the material, abundantly illustrates the existence of the ‘singular peculiarities’ of a number of features common to all offences which warrant the drawing of a conclusion that it was the same person; namely the defendant, involved in the commission of all of the offences.

19. The magistrate then addressed the general common law exclusionary rule relating to “similar fact evidence” and observed that evidence of similar facts is inadmissible unless the evidence is sufficiently highly probative of a fact in issue to outweigh the prejudice it may cause.  The magistrate referred to the comments of Mason CJ, Wilson and Gaudron JJ in Hoch v The Queen:[7]

    [The probative strength of the similar fact evidence] lies in the fact that the evidence reveals “striking similarities”, “unusual features”, “underlying unity”, “system” or “pattern” such that it raises as a matter of common sense and experience the objective improbability of some event having occurred other than as alleged by the prosecution.

    [7] Hoch v The Queen (1988) 165 CLR 292 at 294-295

20. Having considered the evidence of the circumstances of the offending and the identification evidence provided by each of the complainants, the magistrate concluded:

    In the circumstances because of the ‘striking similarities, underlying unity, system or pattern of the offending’ it is possible to allow cross-admissibility of the evidence to corroborate the witness’ accounts with respect to their respective observations.  The only logical and reasonable hypothesis that emerges from the whole of the evidence is that the offender was on and the same person in each case.

    The Appeal

    The Grounds

21. The appellant advanced the following grounds of appeal:

    -    The magistrate erred in not exercising his discretion to exclude the photographic identification evidence especially taking into account:

    ·   Reasons given regarding the lack of identification parade and photographic identification;

    ·   No explanation was given during the trial as to why photograph number 4 in exhibit P22 was not included in subsequent photo identification procedures;

    ·   The magistrate based his guilty verdicts on the photographic identification evidence.

    -    The magistrate’s decision not to exercise his discretion and exclude such photographic identification led to:

    ·   Unfairness and prejudice to the appellant;

    ·   Unsafe and unsatisfactory verdicts of guilty;

    ·   Miscarriage of justice.

    -    The magistrate erred in not ruling that there was no case to answer or alternatively erred in not directing himself to return verdicts of not guilty on all counts:

    ·   The magistrate erred in rejecting as a reasonable possibility the proposition that the person first picked out by one of the complainants from a number of photographs, exhibit P22, was the offender.

    Cross-Admissibility of the Identification Evidence

22. It was the prosecution case that the trial involved a number of complainants giving evidence of offences of a similar nature involving the same assailant.  However, the prosecution did not seek to describe the case as a “similar fact case” as that term was used by the High Court in Sutton.[8]  Rather, it was the Crown case that there was an underlying unity in the offending conduct, a similarity in the pattern, style and circumstances of the offending, that justified the charges being heard together.[9]

    [8] (1984) 152 CLR 528

    [9] Hoch  v The Queen (1988) 165 CLR 292; R v Liddy (2002) 81 SASR 22

23. These unifying features included: the nature of the offence (often a brief conversation followed by indecent exposure and/or masturbation); the location of the offences (Linear Park); the time the offending took place (afternoon or evening); the description of the assailant given by each of the complainants (the assailant in every case was jogging and wearing jogging clothes); the descriptions of the assailant’s voice; the descriptions of the assailant’s shorts, (dark blue); and the descriptions of the assailant’s hair (dark brown with blond tips/streaks).

24. On the Crown case, the one assailant was responsible for all offences.  This conclusion was supported by the evidence of each complainant.  This support came from the photographic identification of the appellant by the complainants, together with their general descriptions.  It was appropriate for this body of evidence to be used in regard to the determination of each complaint.  In addition to this body of evidence, the similarities in the modus operandi of each count gave rise to an inherent unlikelihood that the identity of the offender in each count would be different.  It was open for the magistrate to conclude that the assailant was the appellant.

1. An identical modus operandi was not required to allow the identification evidence of the complainants to be cross-admissible between counts.  The modus operandi was not dissimilar in each of the incidents of offending conduct.  The evidence was cross-admissible.  The weight of the evidence demonstrated the improbability of either: the offences not occurring in the way that has been alleged by the prosecution; or that some other offender could have committed the offences as alleged by the prosecution.

   No Challenge to Admissibility at Trial

2. It is well established that an appellate court ought to be slow to interfere with the exercise of a magistrate’s discretion to admit evidence in the absence of identifiable error.  In Rowland v Police  Perry J observed:[10]

   The question on the hearing of an appeal from a magistrate is not whether there was material upon the basis of which it was open to the magistrate to reach the conclusion which he or she did. On the contrary, the question is whether or not, having reviewed the evidence for itself, while making due allowance for the advantage held by the magistrate in seeing and hearing the witnesses, this Court is satisfied that the judgment under appeal is correct.

   [10] Rowland v Police (2001) 79 SASR 569 at 574

3. It should be noted that the admissibility of the photographic identification evidence was not challenged at or prior to trial.  No voir dire was conducted.  No objection was made to the showing of the video footage of the photographic identification procedures.

4. Following the close of the prosecution case, defence counsel made a no-case to answer submission and in the alternative sought a Prasad direction.  At this time a brief reference was made to an application to exclude the identification evidence.  The following exchange occurred between defence counsel and the trial magistrate at the close of the prosecution case during the submission of no-case to answer:

   CounselJust concentrating on [DS] for a moment.  It is certainly my submission that that identification evidence couldn’t be sent to a jury because the fairness isn’t there and what I would submit is if one only needs ask the rhetorical question: Could public confidence in the photographic identification process be maintained if it was known that the Crown could get away with such a thing.

   …

   His Honour: [Defence counsel] submits that the process engaged by Detective Clarke in this case is flawed and that that flaw carries right through the whole of the procedure adopted for each of the witnesses in question. … The submission is therefore that on the state of the case before me, that the photographic ID cannot be admitted and used in the prosecution case…. I have considered the submissions very carefully.  I have considered all of the evidence before me and I think that it goes beyond just the photographic identification in this case.  If I have a look at the totality of the evidence then I consider that there is a very strong prima facie case against the defendant and therefore it is appropriate for him to provide an explanation.  I find therefore that there is a case to answer.

5. The application was not pressed.  No explanation was offered as to why the issue of the exercise of the fairness discretion had not been raised earlier. 

   The Question of Suggestibility

6. In Alexander[11] the High Court held that a trial judge has a discretion to exclude identification evidence if the admission of such evidence would result in unfair prejudice to the accused.  Gibbs CJ observed: [12]

   The authorities support the conclusion that I have reached, which is that, as a matter of law, evidence of an identification made out of court by the use of photographs produced by the police is admissible.  However, a trial judge has a discretion to exclude any evidence if the strict rules of admissibility operate unfairly against the accused.  It would be right to exercise that discretion in any case in which the judge was of the opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused.

   [11] Alexander v The Queen (1980) 145 CLR 385

   [12] Alexander v The Queen (1980) 145 CLR 385 at 402-403

7. Stephen J referred to the dangers identified in Davies and Cody[13] in the context of a photographic identification and observed: [14]

   The accuracy of any identification of a stranger, seen once only, is likely to be affected by the fallibility of human perception and memory.  When identification is attempted with the aid of photographs, there are introduced peculiar difficulties, due to the various ways in which photographic representations differ from nature: their two dimensional and static quality, the fact that they are often in black and white and the clear and well lit picture of the subject which they usually provide. The use of photo-identification in the evidentiary process involves three further factors of a quite different kind which apply only to its use in that process.

   Unlike the case of an identification parade, an accused whose identity as the offender is sought to be proved at his trial by evidence of previous photo-identification is likely to know nothing at first hand of the way in which the identifying witness earlier identified his photograph as that of the offender. He must rely upon cross-examination of prosecution witnesses for knowledge of the conditions of identification and of what safeguards were taken against error on the part of the identifying witness. Again, by what may be called the "rogues' gallery" effect, evidence that the police had in their possession and showed to the identifying witness photographs of the accused may often strongly suggest to a jury that the accused has a criminal record, perhaps even a propensity to commit a crime of the kind with which he is charged.  Their production in evidence, or even reference to their existence, may then be highly prejudicial to an accused. Lastly, there is the "displacement" effect. Having been shown a photograph, the memory of it may be more clearly retained than the memory of the original sighting of the offender and may, accordingly, displace that original memory. Any subsequent face-to-face identification, in court or in an identification parade, may, on the identifying witness's part, in truth involve a matching of the man so identified with the remembered photograph, which has displaced in his memory his recollection of the original sighting.

   [13] (1937) 57 CLR 170

   [14] (1980) 145 CLR 385 at 490

8. The comments of the courts in Davies and Cody, Alexander and Hallam and Karger were reaffirmed more recently by the High Court in Festa v The Queen.  Gleeson CJ described the dangers associated with photographic identification evidence in the following terms: [15]

   There are two principal dangers associated with identification by means of selection from a group of photographs.  These were discussed in Alexander.  There is the inherent risk of error associated with suggestibility, and what is sometimes called the displacement effect.  But there is also a risk of a different kind.  The fact that the police have photographs of a suspect might convey to the jury the message that the suspect is a person with a criminal history.  A similar risk arises where identification is made in circumstances suggestive of a criminal background, such as where a person is asked to attend a police station and look at a number of people reporting in compliance with bail or parole conditions.  This is sometimes called the rogues’ gallery effect…The first kind of risk concerns the probative value of the evidence. The second is a risk that the jury will draw an inference about a fact which, even if true, would ordinarily be excluded from evidence. In that connection, some care is needed in the use of the term ‘prejudice’. Where it is present, a risk of the second kind is clearly a risk of unfair prejudice. It is a risk that a fact will be suggested which is of a kind that is ordinarily excluded from evidence in the interests of fairness to an accused. But prejudice does not arise simply from the tendency of admissible evidence to inculpate an accused. It is unfair prejudice that is in question. Where evidence is relevant and of some probative value, prejudice might arise because of a danger that a jury may use the evidence in some manner that goes beyond the probative value it may properly be given. If there is relevant prejudice of that kind, it lies in the risk of improper use of the evidence, not in the inculpatory consequences of its proper use. If it were otherwise, probative value would itself be prejudice. All admissible evidence which supports a prosecution case is prejudicial to an accused in a colloquial sense; but that is not the sense in which the term is used in the context of admissibility. 

   The risk of suggestibility or “displacement effect” generated by the use of photographic identification has been said to depend upon the adequacy of the opportunity for an accurate identification to be made in the first instance.[16]

   [15] (2001-02) 208 CLR 593 at 603

   [16] R v Wenzlaff [2004] SASC 233 at [53]

9. The exercise of discretion requires an evaluation of the probative value of the identification evidence and a comparison to the prejudicial effect of the evidence to the appellant.  In the present case the magistrate acknowledged the dangers of suggestibility and the “displacement” effect of photographic identification and correctly exercised caution when relying on that aspect of the identification evidence.  However, the magistrate was entitled to have regard to the evidence as a whole.  When considering the totality of the evidence, it was open to the magistrate to admit the photographic identification evidence.  Any risk of suggestibility or prejudice to the accused arising out of the omission of photograph four from exhibit P22 in subsequent photo-boards could be adequately addressed by the weight given to such evidence. 

10. No police misconduct or inherent unreliability of the identification evidence has been established.  At trial the police witnesses were not challenged with any suggestion of unfairness in the preparation of the photographic identification kits.  No questions were asked as to why the police did not include photograph four in later photo-boards.  No basis for exercising the discretion to exclude the evidence on the grounds of improper or unfair police conduct was established by the appellant.

11. The present case is distinguishable from Hallam and Karger[17] or Alexander.  The risks associated with suggestibility were less.  Nine complainants selected the appellant’s photograph from a photo-board.  Each complainant provided a similar description of the assailant.  These descriptions, varying in particularity were consistent with the physical features of the appellant at the time of the offending.  Clothes generally matching the descriptions given by the complainants were located at the appellant’s house.  The appellant agreed that he was a running and often went runner in the general vicinity of the location of the offences and at the times the offences occurred.  The probative value of the photographic identification evidence, when considered in the context of the surrounding evidence, outweighed any potential prejudicial effect on the accused.

    [17] (1985) 42 SASR 126

    The Admission of the Photographic Identification Evidence

12. It was submitted by counsel for the appellant that the central issue on appeal was that the photograph identification evidence relied upon by the prosecution at trial was tainted, as one photograph did not appear in photo-boards P23 and P24 but did appear in photo-board P22.  It was said that this created a “line of unfairness” which led to prejudice to the appellant and ultimately resulted in a miscarriage of justice.

13. Counsel submitted that, although the magistrate fairly set out the factual circumstances of the case and correctly identified his discretion to exclude the identification evidence, unfairness arose from magistrate’s error in the exercise of his discretion to allow the photographic identification evidence to remain admitted when finally challenged.  It was said that without this evidence there would not be enough evidence to find the appellant guilty beyond a reasonable doubt.

14. It was the appellant’s case that the magistrate ought to have found that the police procedure in conducting the photographic identification was inherently flawed.  It was contended, that if such a photographic identification procedure were to provide admissible evidence, public confidence in photographic identification procedures would be diminished.  Counsel for the appellant drew attention to the police’s failure to include photograph 4 in exhibit P22 in subsequent photographic identification procedures.  It was said that this police procedure was erroneous given that one of the victims, DS chose that photograph as her first choice when shown exhibit P22 and asked to identify her assailant.  Counsel for the appellant submitted that the omission of photograph 4 in subsequent photographic identification folders exhibits, P23 and P24, gave rise to a reasonable doubt that other victims may have selected photograph 4 as the assailant, as DS did when she was shown exhibit P22.

15. Counsel contended that the magistrate erred in rejecting as a reasonable possibility the proposition that the person DS first picked out of a number of photographs was the offender, and as that person was not the appellant, the appellant was not the offender.

16. The dangers of suggestibility associated with the use of photographic identification can be avoided when the trier of fact is a magistrate or judge sitting alone.  In such circumstances suggestibility and other concerns as to the weight to be attached to the evidence can be considered by the Court without the risk of a jury improperly using the evidence.  A magistrate is able to discard any prejudicial effect the admission of the evidence may have on an accused.

17. No improper conduct by police during the photographic identification process was alleged.  The appellant’s complaint relates to a particular complainant’s, (DS) initial selection of a photograph, number 4, from exhibit P22 which was not included in subsequent photo-boards.  The omission of photograph number 4 in subsequent photo-boards occurred in an effort to ensure subsequent photo-boards reduced the risks of suggestibility by eliminating obvious differences in appearance and expression of the persons on the photo-board.

18. It was incumbent upon the appellant to directly raise any question as to the propriety of the police investigation.  As earlier observed at trial no police witness was challenged with the suggestion that there had been unfairness in the preparation of the photographic identification kits.  No questions were asked as to why the police did not include photograph four in later photo-boards.  No basis for exercising the discretion to exclude the evidence on the grounds of improper or unfair police conduct has been established by the appellant.  The failure to include photograph 4 in subsequent photo-boards did not result in unfairness to the appellant.

19. It is to be further noted that photograph 4 was of a person smiling.  Had this photograph been included in subsequent photo-boards it would have been the only picture of a person smiling.  To include such a photograph could result in a risk of unfairness to the appellant.  This risk of unfairness was highlighted by the way in which the attention of DS was drawn to photograph 4 in exhibit P22 because the person was smiling.

20. The first photo-board shown to DS, exhibit P22, contained an old picture of the appellant when he was younger and thinner in the face at position 3.  The other photographs in exhibit P22 corresponded with the features of the appellant at that time.  The second photo-board, shown to DS and the other complainants, contained a photograph of the appellant taken at the time of his arrest.  This photograph is notably different from that contained in P22.  The appellant was older, had longer hair and was heavier in the face.  Photograph 3 in exhibit P22 did not bear sufficient resemblance to the more recent photograph of the appellant included in the subsequent photo-boards.  It was not inappropriate for the police to place a photograph of the suspect amongst people of similar appearance.  Photograph 3 of exhibit P22 was not included in subsequent photo-boards as it did not look similar in appearance to the more recent photograph of the appellant. 

21. The evidence of the identifications by the complainants was probative.  No specific prominence was given to the appellant in the photo-boards.  The photograph of the appellant was a recent photograph.  The identification procedures followed were conducted fully and properly and were video-taped.  Even if the identification evidence could be described as less than perfect, the evidence remained admissible.  Any issue arising from it would raise the question of the weight to be given to the evidence.

22. There appears to be nothing inherent in the nature of the photographic identification evidence giving rise to dangers of suggestibility.  It was of probative value to the Crown case.  Its prejudicial effect, if any, had to be evaluated in light of the totality of the identification evidence adduced by the Crown at trial.

23. Any risk of suggestibility arising from the identification process was outweighed by the relevance and probative value of the identification evidence.  Any “displacement effect” ought to be considered in light of the other factors contributing to the prosecution’s case that the appellant was the offender.  These factors include: the proximity of the offences to the appellant’s house; the appellant’s admission that he was running along Linear Park during April to July 2003; the appellant’s admission that he always wore a cap when running; the description of the offender by the complainants matched the appellant; the description of the voice of the offender matched the voice of the appellant; and the description of DS of the offender as wearing a pair of long running pants and a long-sleeved running top.   The appellant had such items in his possession.

24. The decision of the magistrate to reject the late application to exclude the evidence in the exercise of the fairness discretion was open to him as a matter of discretion.  There had been no challenge to the admissibility of the evidence when led.  The suggestion of any unfairness, or any failure to follow proper police practice, was not put to the witnesses.  The evidence was admissible.  The defence concerns could be addressed to the magistrate and if well founded could be fairly dealt with in assessing what weight, if any, the magistrate would attach to the evidence when it was considered with all the other evidence admitted in the trial.

    Identification Evidence

    Identification Parade

25. In light of the dangers of suggestibility associated with photographic identification evidence, it is accepted that where a person is a definite suspect the proper procedure is to arrange for the suspect to participate in an identification parade.  If no identification parade occurs, and identification evidence is obtained through other processes, discretion to exclude the identification evidence will arise.  This principle was discussed in R v Deering where King CJ observed:[18]

    The courts have emphasized in a number of cases the superiority of identification by means of identification parade over identification by means of inspection of photographs.  In this connection it is necessary only to refer to … Alexander’s case, and to the case in this Full Court of R v Hallam and Karger.  …

    Where there is a clear and definite suspect or where an arrest has been made the proper procedure to be followed is for the police to arrange an identification parade if the suspect or arrested person is prepared to participate in such a parade.  If that procedure is not followed it gives rise to a discretion in the trial judge to exclude the evidence of identification by other means and that discretion will be exercised having regard to all relevant factors including, of course, the public interest in ensuring that persons who have committed crimes are convicted and punished for those crimes.  It may be necessary to present photographs to an alleged victim of a crime at a stage of the investigation at which no person has been arrested and at which there is no definite suspect, in order to provide an opportunity for the victim to pick out the offender.  The distinction between what [counsel] in his submission described as the pre-detection stage of an investigation and the post-detection stage of an investigation is referred to in Alexander’s case.  Such a procedure involves no impropriety.

    [18] R v Deering (1986) 43 SASR 252 at 253

1. However, it has also been established that in some circumstances, such as where a suspect refuses to participate in an identification parade, the use of photographic identification may be unavoidable.  In Hallam and Karger King CJ observed:[19]

   It should be emphasized that the proper method of procuring evidence of identification is by the identification parade.  Identification by selection of photographs is open to grave objections and should be resorted to only where unavoidable.  That method may be unavoidable, during the course of an investigation, where there is no definite suspect or where the suspect will not consent to an identification parade.  If it has to be resorted to, it must be recognised as the inferior form of identification which it is, for the reasons emphasized by the High Court in Alexander’s case.

   [19] R v Hallam and Karger (1985) 42 SASR 126 at 130

2. It was accepted by both counsel that the appellant was invited by investigation police to participate in an identification parade but he refused.  As a result it was necessary for the police to resort to alternative means of identification.  The process of photographic identification was available and constituted a permissible process of identification.

3. The present case did not involve a failure on the part of the Crown to endeavour to provide what has been considered to be the most reliable source of identification evidence - evidence adduced from an identification parade.  This is case where the Crown had no alternative but to resort to other identification processes. 

   Dock Identification

4. A number of the complainants identified the appellant in court as the assailant.  It was accepted by counsel for the Crown that dock identifications give rise to serious risks of suggestibility.  When considered in isolation, the risk of prejudice to the accused is likely to outweigh any probative effect.[20]  The general unreliability of dock identifications is well established.  It was submitted by counsel for the Crown that the dock identifications simply formed part of the totality of the evidence against which the photographic identification subject to challenge on this appeal ought to be evaluated.

   Photographic Identification

   [20] See Alexander v The Queen (1980-1981) 146 CLR 393 per Gibbs CJ at 399

5. As earlier observed, all of the complainants were shown photo-boards containing a photograph of the appellant amongst others and were asked to identify, if possible, their assailant.  As previously noted, DS initially selected a photograph of a person who was not the appellant and subsequently selected a photograph of the appellant when shown a different photo-board.  The nature of her evidence arising from this process has been discussed earlier.  The other complainants were shown photo-boards that differed in content from the photo-board first shown to DS.  The photographic identification processes were recorded on video.  Each of the complainants selected a photograph of the appellant as their assailant. 

6. The dangers of identification evidence are well known, and have led to the development of rules and procedures to ensure that the risks of inappropriate identification evidence leading to wrong convictions are minimised.[21]   In Pitkin[22] the High Court considered the risks associated with identification evidence procured by way of photo board identification procedures.  Deane, Toohey and McHugh JJ observed:[23]

   The use of photographs of suspects by law enforcement agencies for the purpose of identifying an offender is a necessary and justifiable step in the course of efficient criminal investigation. Nonetheless, it is attended by some danger of consequential and unfair prejudice to an accused. One such danger is that identification through a photograph is likely to be less reliable than direct personal identification since differences in appearance between the offender and a suspect may be less noticeable when a photograph of the suspect is used. In that regard, once there has been purported identification through a photograph, any subsequent direct identification may be less reliable by reason of the subconscious effect of the photograph upon the witness’s recollection of the actual appearance of the offender. Another such danger is that a witness who is shown photographs by investigating police will ordinarily be desirous of assisting the police and will be likely to assume that the photographs shown to her by the police are photographs of likely offenders. In that context, and in an environment where the ultimate accused will necessarily be absent and unrepresented, there may be subconscious pressure upon the witness to pick out any photograph of a “suspect” who “looks like” the offender notwithstanding that the witness cannot, and does not purport to, positively identify the subject of the photograph as the offender. Yet another danger from the point of view of an accused is that a witness’s evidence that she identified a photograph of the accused which was in the possession of the police may suggest to the jury that the accused either has a criminal record involving the relevant kind of crime or is otherwise unfavourably known to the police as a person likely to commit that kind of crime. That danger of prejudice is likely to be increased in a case, such as the present, where the police have produced a number of different photographs of the accused taken at different times.

   [21] For example see Alexander v The Queen (1981) 145 CLR 395; Pitkin v The Queen (1995) 69 ALJR 612 and Knight v Brown (2004) 183 FLR 137

   [22] Pitkin v The Queen (1995) 69 ALJR 612

   [23] Pitkin v The Queen (1995) 69 ALJR 612 at 614-615

7. Deane, Toohey and McHugh JJ observed that in the context of the danger of prejudice to an accused, a witness’ earlier selection of a photograph or photographs, ought to be subjected to careful scrutiny before being accepted as constituting evidence of positive identification.

8. It is to be observed that the above passage in Pitkin does not give rise to a presumption of unreliability of evidence obtained as a result of a photographic identification procedure.  Moreover, it has been emphasised that the High Court’s observations in Festa[24] require courts to consider the evidence as a whole when determining the admissibility of identification evidence. 

   [24] (2001) 208 CLR 593

9. In the present case the trial magistrate correctly identified the risks associated with photographic identification evidence generally and as emphasised by the High Court in Pitkin and acknowledged and considered defence counsel’s submissions in relation to the risk of unfairness to the appellant. In particular, it was noted that [DS] originally selected a photograph that was not of the appellant:

   [P]hotographic identification is an inferior method and it must be carried out with scrupulous fairness and must be approached with great caution.

   …

   In the case of [DS], the second identification process may have resulted in the so-called ‘displacement effect’, referred to by Stephen J in Alexander’s case, however, as far as the other identification processes, there is nothing to stop the investigating officers using different photo packs for each of the witnesses so long as in each case there was no prejudice to the accused.

10. As observed in Festa, the magistrate was entitled to have regard to the whole body of evidence when assessing the admissibility of the photographic identification and, if admissible, the weight to be attributed to it.  In the present case, there was a substantial body of identification evidence before the magistrate in addition to that procured by photographic identification methods.  In addition, an explanation was offered as to why the photographs first shown to [DS] were replaced in subsequent photo-boards.  Having regard to the evidence as a whole, the magistrate’s treatment of the photographic identification evidence was appropriate.  His findings were open on the evidence.

    Totality of the Identification Evidence 

11. As earlier observed, the photographic identification evidence was an important part of the Crown case against the appellant, however it was not the only evidence of identification.  Other relevant circumstantial evidence included the location of the offending and the jogging route of the appellant, the general descriptions of the assailant provided by the complainants and the descriptions of the assailant’s clothing and the clothing located at the appellant’s home.

12. Where identification evidence forms part of the body of the evidence before the trier of fact, its probative value must be evaluated in the context of the entire body of evidence. In Festa Gleeson CJ observed:[25]

    Questions as to the admissibility of evidence may be related to, but are different from, questions as to whether the totality of the evidence in a case is sufficient to sustain a jury's verdict, or questions as to the warnings that need to be given to a jury about the use that may properly be made of the evidence. If evidence is of some, albeit slight, probative value, then it is admissible unless some principle of exclusion comes into play to justify withholding it from a jury's consideration. It is not enough to say that it is "weak", and, as already mentioned, whether it is weak might depend on what use is made of it. The totality of the evidence may be such as to render a conviction unsafe. But that does not affect admissibility. And the jury may need to be warned that evidence, if accepted, only shows consistency of appearance between the person and the offender; a fact which may or may not be of much significance depending upon other matters. Evidence of blood sampling may be relevant and admissible, for example, even though, standing alone, it only establishes that it is consistent with the accused being the offender. Evidence may show that an accused was near the scene of a crime. Such evidence, on its own, does not show that the accused committed the crime. That does not mean it is of no probative value; in the end, it will have to be considered together with all the other admissible evidence

    [25] (2001) 208 CLR 593 at 599 – see also R v Bennett (2004) 88 SASR 6

13. Gleeson CJ continued:[26]

       For any one of a number of reasons, evidence of observations, including evidence of positive identification, may be made in circumstances which adversely affect its reliability. Those circumstances may be beyond anybody's control, or they may result, for example, from the way police have conducted an investigation. In Davies and Cody v The King this Court considered evidence of positive identification of an accused by a witness whose previous knowledge had not made him familiar with the accused, and who was first shown the accused, alone, as a suspect. The risk involved in identification made in those circumstances is obvious. The Court said:

    [I]f a witness whose previous knowledge of the accused man has not made him familiar with his appearance has been shown the accused alone as a suspect and has on that occasion first identified him, the liability to mistake is so increased as to make it unsafe to convict the accused unless his identity is further proved by other evidence direct or circumstantial. Where that further evidence consists in or includes other witnesses whose identification has been of the same kind, the number of witnesses, their opportunities of obtaining an impression or knowledge of the prisoner and other circumstances in the case must be taken into account by the court of criminal appeal for the purpose of deciding whether on the whole case the possibility of error is so substantial as to make the conviction unsafe.

    That passage assumed the admissibility of the evidence, and accepted the possibility that, although standing alone the "liability to mistake" of such evidence was apparent, in combination with other evidence, even other evidence of the same kind, it might sustain a conviction.

    [26] (2001) 208 CLR 593 at 599-600

14. When assessing the probative weight to be attached to particular identification evidence, that evidence must be evaluated in the context of the evidence as a whole.  In the present case, the probative value of the photographic identification evidence must be considered in its entirety and together with the other circumstantial evidence.  The totality of the evidence must be taken into account.  As observed by the High Court in Chamberlain v The Queen:[27]

    Again, the quality of evidence of identification may be poor, but other evidence may support its correctness ; in such a case the jury should not be told to look at the evidence of each witness ‘separately in, so to speak, a hermetically sealed compartment’; they should consider the accumulation of the evidence: cf Weeder v The Queen.

    [27] Chamberlain v The Queen (1984) 153 CLR 251 at 535

15. The cumulative effect of evidence of opportunity, proximity, the assailant being a regular jogger, the description of the assailant’s hair closely matching that of the appellant, the similarity between the complainants’ descriptions of the assailant’s clothes and clothes located at the appellant’s home, the physical descriptions provided by the complainants and the evidence of the complainant identifying a photograph of the appellant as the assailant amounted to a strong prosecution case.  Even if it could be concluded that some ambiguity existed in the identification by the complainants, the totality of the evidence fully justified the findings of guilt. 

16. The appeal should be dismissed.