Judgment Suppressed
[2008] WASC 226
•26 SEPTEMBER 2008
THE STATE OF WESTERN AUSTRALIA -v- BILOS [2008] WASC 226
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 226 | |
| Case No: | INS:78/2008 | 26 SEPTEMBER 2008 | |
| Coram: | HASLUCK J | 26/09/08 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | No case submission dismissed | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA ROBERT GEORGE BILOS |
Catchwords: | Criminal law Evidence Identification by digiboard Admissibility of positive and negative identification Delay between commission of offence and identification by witness Factors regarding reliability and weight of evidence can be addressed by direction to jury Warning of forensic disadvantage to accused Effect of delay upon process of recollection Relevance and probative value of admissible evidence Whether limited probative value of evidence is outweighed by prejudicial effect No case to answer submission dismissed |
Legislation: | Criminal Procedure Act 2004 s 98(2) |
Case References: | Alexander v The Queen (1981) 145 CLR 395 Dhanhoa v The Queen [2003] HCA 40 Domican v The Queen (1992) 173 CLR 555 Hunt v The State of Western Australia [2008] WASCA 37 Kelly v The Queen [2002] WASCA 134 Longman v The Queen (1989) 168 CLR 79 May v O'Sullivan (1955) 92 CLR 654 Mule v The Queen [2002] WASCA 101 Mundarra Doolan Smith v The Queen (2001) 206 CLR 650 Pitkin (1995) 80 A Crim R 302 Roser v The Queen (2001) 24 WAR 254 State of Western Australia v Wood [2008] WASCA 81 Winmar v Western Australia [2007] WASCA 244; 35 WAR 159 Yarran v The Queen [2001] WASCA 52 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Prosecutor
AND
ROBERT GEORGE BILOS
Accused
Catchwords:
Criminal law - Evidence - Identification by digiboard - Admissibility of positive and negative identification - Delay between commission of offence and identification by witness - Factors regarding reliability and weight of evidence can be addressed by direction to jury - Warning of forensic disadvantage to accused - Effect of delay upon process of recollection - Relevance and probative value of admissible evidence - Whether limited probative value of evidence is outweighed by prejudicial effect - No case to answer submission dismissed
Legislation:
Criminal Procedure Act 2004 s 98(2)
(Page 2)
Result:
No case submission dismissed
Category: B
Representation:
Counsel:
Prosecutor : Mr L Hobson
Accused : Mr P J Urquhart
Solicitors:
Prosecutor : Director of Public Prosecutions (WA)
Accused : Hammond Worthington
Case(s) referred to in judgment(s):
Alexander v The Queen (1981) 145 CLR 395
Dhanhoa v The Queen [2003] HCA 40
Domican v The Queen (1992) 173 CLR 555
Hunt v The State of Western Australia [2008] WASCA 37
Kelly v The Queen [2002] WASCA 134
Longman v The Queen (1989) 168 CLR 79
May v O'Sullivan (1955) 92 CLR 654
Mule v The Queen [2002] WASCA 101
Mundarra Doolan Smith v The Queen (2001) 206 CLR 650
Pitkin (1995) 80 A Crim R 302
Roser v The Queen (2001) 24 WAR 254
State of Western Australia v Wood [2008] WASCA 81
Winmar v Western Australia [2007] WASCA 244; 35 WAR 159
Yarran v The Queen [2001] WASCA 52
(Page 3)
- HASLUCK J:
Pre-trial issues
1 The accused, Robert George Bilos, is charged by indictment dated 12 June 2008 that over ten years ago, on 4 June 1998, at Rockingham he stole, with threats of actual violence, a sum of money the property of the ANZ Bank and that he pretended to be armed with a dangerous weapon, namely, a firearm. I understand that the matter has been listed for trial in the Supreme Court for two days commencing 22 December 2008.
2 Counsel for the accused has raised issues as to the admissibility of certain evidence concerning identification. Counsel contends also that, in any event, it is apparent from the prosecution evidence that the accused has no case to answer, especially if the matters the subject of his application are resolved in the manner he contends for. He asserts that the court should make a ruling to that effect and find the accused not guilty of the charge.
3 These matters come before me pursuant to s 98(2) of the Criminal Procedure Act 2004 (WA), whereby at any time before the accused's trial begins the court may determine any question of law or procedure or any question of fact that may be determined lawfully by a judge alone without a jury. More particularly, by s 98(2)(c) if the court is satisfied as a matter of law that the accused has no case to answer on a charge, the court may find the accused not guilty of the charge without requiring a jury to give its verdict on the charge.
4 Section 98(5) of the Act provides that the judge constituting the court that deals with such matters need not be the judge who constitutes the court when the trial of the accused takes place. However, by s 98(6), any such proceedings are to be taken to be part of the accused's trial.
5 For the purposes of this application, I heard evidence from Ms Robertson, a bank teller employed by the subject bank at the time. I viewed DVD recordings of the digiboard process concerning the three witnesses I will come to later; namely, Ms Robertson, Ms Jana Supljeglav and Ms Cox. As to witnesses other than Ms Robertson, I proceeded on the basis that evidence would be adduced from them as reflected in the prosecution brief. I am conscious that cross-examination of these witnesses - namely, Jana Supljeglav and Leanne Cox - would have tested and possibly weakened or diminished the evidentiary force of the evidence to be given by them, but, for the reasons I will come to later, I do not see that as being crucial in resolving the matters before me.
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6 I had before me also various exhibits, including the digiboard photo sheets referred to later. It was an agreed fact before me that photo 10 on the digiboard signed by Ms Robertson was a head shot of the accused taken 31 May 1997; that is, a year or so before the incident. Likewise, for photo 5 on the board signed by Jana Supljeglav.
7 I had also bank security photographs placed before me in the course of the proceedings today of the tellers and persons in their vicinity on the bank premises at the time of the incident. One of those photos showing a man leaving the premises was reproduced, it seems, in a Crime Stoppers article in the West Australian after the incident; that is, on 11 July 1998. These photos were said to have a bearing on the reliability of the evidence of the bank witnesses because they showed that Ms Robertson had a clear and unimpeded view of the offender and her description could be matched to that of the offender as depicted in the photographs.
8 Counsel for the respective parties filed written submissions, and much of what follows concerning the law is drawn from those submissions.
9 The defence submissions appear to accept that an armed hold up at the Rockingham branch of the ANZ Bank took place on 4 June 1998. The sole issue in dispute is whether the prosecution can prove that the accused man was the offender.
10 For ease of exposition, I will continue to refer to the man who made the demand and allegedly obtained the stolen property as 'the offender' upon the basis that the identity of that person, whoever he is, has not yet been determined. That is an issue to be resolved at the forthcoming trial.
The prosecution case
11 The prosecution case is that the offender approached the female bank teller Ms Diane Robertson (now Ms C), and placed a pink manila folder containing a Worths plastic bag and a note on the counter. The note stated that he was armed, would shoot and requested that all the money be put into a bag. No firearm was sighted by Ms Robertson. The note and the bag (now containing money) was taken away by the offender.
12 Ms Robertson's evidence at the hearing before me was to this effect, in summary form: She saw the offender first when he was in the queue. She looked at him when he approached the counter. She glanced at him briefly while she was doing what he asked and looked at him as she pushed the bag across. She saw him for a couple of minutes. She
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- activated an alarm and, hence, the bank security cameras while handling the bank notes.
13 She agreed under cross-examination that the signed statement she provided to the police did not refer to the time frame and her estimate of one or two minutes as the span of her observation was in the nature of a guess. She said that her best look at him was when he first approached, but she did get a clear look at his face at that time. She agreed that her training required her not to stare at him.
14 Ms Robertson completed a form titled 'Holdup Details', which included a description of the offender and a signed handwritten statement dated 4 June 1998 in which she described the offender and what he did.
15 Under cross-examination, she put 'Asian' on the Holdup Details form, meaning dark skinned, and there is a note to that effect arguably on the form also. She could not recall seeing a newspaper article or photo about the incident.
16 Ms Jana Supljeglav was also working at the Rockingham branch on the day in question. She provided a signed handwritten statement dated 4 June 1998 containing a description of the person she saw waiting in line to be served by tellers, although she did not observe the person attending at the tellers. She also described the offender on the Holdup Details form.
17 It seems that security cameras were in place inside the bank. As I indicated, a series of still photographs were extracted and were taken of the offender, commencing with him at the teller desk in front of Ms Robertson, holding the bag and the folder, then walking out of the bank. It seems that a suspect was not identified at that time in 1998.
18 Much later - close to ten years later, in fact - the accused was nominated as a person of interest. As I have indicated, this led to a head shot photo of him which had been taken on 31 May 1997 being placed on a digiboard at position 10, together with 11 head shot photographs of similar appearance males.
19 On 4 February 2008 Detective Sergeant Hindriksen supervised a standard procedure whereby the digiboard was shown to Ms Robertson with questions and answers being recorded on DVD, being the DVD I observed in the course of the hearing before me. After looking at the digiboard for a comparatively short space of time, Ms Robertson identified photograph 10, being the photograph of the accused mentioned earlier.
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20 She said under cross-examination that, when the detective first rang her up, he said that he thought they had found the man 'who held you up', but she did not necessarily expect a photo of the man to be on the board because the detective had said it might not be.
21 She said in evidence before me that she chose photograph 10 from memory because she remembered the eyes and eyebrows of the man who had approached her.
22 Three weeks later, on 27 February 2008, Ms Jana Supljeglav was shown a separate digiboard, 0806554, with the photograph of the accused being positioned at number 5. The same procedure was followed. She selected number 5 after viewing the digiboard for a more extensive period than that of Ms Robertson. The relevant conservation accompanying this selection included a passage in which the witness said initially, 'The only one that stands out to me is number 5. I don't know why, but'. She added, 'They all look very similar, don't they, in one way or another?' and went on to say, 'That is the only one that stands out to me. It's such a long time ago, you don't.' The police officer then said, 'If you are happy it's number 5, I will get you just to write it in there,' and that was done.
Defence submissions
23 Defence counsel submitted that, with respect to the purported identification by Jana Supljeglav, the reliability of her identification of the accused was so lacking in probative value as to be inadmissible.
24 In the alternative, the judicial discretion to exclude her identification should be applied, as the prejudicial effect far outweighed the probative value given the lapse in time (close to ten years) from the offence to the identification.
25 As to the identification made by Ms Robertson, defence counsel submitted that, given the time that has elapsed since the identification, the unfairness discretion of the court should be applied to exclude the evidence.
26 It was said further that, in the event of the Court finding that the evidence of Ms Robertson was admissible or that the evidence of Ms Robertson and Ms Supljeglav was admissible, the defence nevertheless submitted that the accused still had no case to answer on the charge.
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27 In other words, it would simply not be open for a reasonable jury, properly instructed and taking the prosecution evidence at its highest, to find the accused man guilty based on the evidence that would be presented before it.
28 This was because, it was said, a jury properly instructed would be directed that, where there is any delay between observation and identification, that delay is a factor to be considered in assessing the accuracy of the identification, and in this case the direction would have to emphasize the considerable delay.
29 Further, in this case there was evidence of negative identification; that another employee, Ms Cox, was shown a digiboard in February 2008 which contained the accused's photograph, but nominated the photograph of another person as the offender. This was so, having regard to the evidence and agreed facts before me and my viewing of the relevant DVD.
30 However, it has to be said that, as contrasted with the other faces on the board, the image at position 5, which was not the accused, in regard to the Cox digiboard process in my estimation, and possibly in the estimation of a jury, does bear a degree of resemblance to the image of the accused, which in fact on that digiboard was to be found at position 7.
31 Counsel submitted that where there is evidence of negative identification, a differential standard of proof is to be applied in considering that evidence. As there is no onus of proof upon an accused person, it is sufficient in exculpation if, upon the evidence of negative identification adduced, a reasonable possibility exists or arises consistent with the innocence of the accused: Mule v The Queen [2002] WASCA 101 per Miller J at [38].
32 Defence counsel submitted also that a jury properly instructed would be told that due to the effluxion of time between the offence and the accused's arrest (close to ten years later in February 2008), the accused has been deprived of the opportunity of assembling exculpatory evidence as to where he was or what he was doing on the day of the offence: Longman v The Queen (1989) 168 CLR 79.
33 Let me now turn to the legal principles bearing upon the matters in issue before me.
(Page 8)
Legal principles
34 The leading High Court authorities on identification are Alexander v The Queen (1981) 145 CLR 395, Domican v The Queen (1992) 173 CLR 555 and Dhanhoa v The Queen [2003] HCA 40.
35 I note in passing, as appears from the written submissions before me, that there is a statement in the prosecution brief in which Detective Hindriksen purports to make an identification of the accused as being the offender in the photographs taken by the bank's security cameras. However, as this police officer did not know the accused at the time of the offence, the State has conceded that this identification evidence is inadmissible. That is because the High Court has held that the identification of an accused by a police witness on security camera photographs was inadmissible, such evidence being simply the expression of an opinion: Mundarra Doolan Smith v The Queen (2001) 206 CLR 650.
36 Leading decisions in this State as to identification include Roser v The Queen (2001) 24 WAR 254; Yarran v The Queen [2001] WASCA 52 and the comparatively recent decision of the Court of Appeal (comprised of five Judges) in Winmar v Western Australia [2007] WASCA 244; 35 WAR 159.
37 It is apparent from Alexander that the courts have recognised for many years that there are serious risks of injustice involved in the admission of identification evidence. However, in theory the manner in which an accused is identified out of court goes to the weight rather than to the admissibility of the evidence. Gibb CJ observed at 399 that the safest and most satisfactory way of ensuring that a witness makes an accurate identification is by arranging for the witness to pick out from a group the person whom he saw on the occasion relevant to the crime.
38 This approach was affirmed in Roser. It was said that evidence of identification of a suspect by means of a photograph should only be led where it is unavoidable and where another more preferable form of identification is not practicable. In the absence of an explanation or justification for the failure to hold an identification parade, there is a discretion to exclude evidence.
39 Nonetheless, it is apparent from Roser that there is no general obligation on a trial Judge to tell the jury that an identification parade should have been held. Further, that case supports the conclusion that
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- evidence of an identification made out of court by the use of photographs produced by the police is admissible.
40 Further, evidence of the first act of identification may be given not only by the person who made the identification but also by the persons who saw it made as an exception to the rule against hearsay and prior consistent statements. The act of identification includes the words uttered by the witness. In that case Anderson J declared at 280 that the trial judge wrongly excluded evidence of what the witness said when the detective showed him the photoboard.
41 Gleeson CJ observed in Festa at [22] that there are two principal dangers associated with identification by means of selection from a group of photographs. There is the inherent risk of error associated with suggestibility. There is also the risk that the presence of a police photograph of a suspect might convey to the jury the message that the suspect is a person with a criminal history. Identification by a witness of an accused person in the dock is thought to have little weight because of suggestibility. However, Gleeson CJ noted at 18 there is no absolute rule requiring rejection of such evidence, and there may be circumstances in which it is appropriate to allow it.
42 In Festa the evidence of visual and voice identification by witnesses who saw the accused at court and identified a photograph of the accused on a photoboard as resembling the accused was held to be admissible, although there were issues as to what weight should be afforded to such evidence. The majority of the High Court held that its probative value outweighed any prejudicial effect on the accused.
43 In Yarran each of the three victims of the sexual offences involved in that case said that the person that they had selected from the photoboards was 'similar' or 'very similar' to the applicant. The Court of Criminal Appeal held that the evidence was admissible, although in cases of that kind directions might be required as to the way in which the evidence could be used.
44 The language used by the witness will be important. In Pitkin (1995) 80 A Crim R 302 a witness identified three photographs of the accused, with the comment, 'this looks like the person'. According to the trial judge, commonsense dictated that it was open to the jury to understand the expression as amounting to a positive identification. However, on appeal the High Court held that the fact that an accused
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- person looks like a person who committed a crime is of itself insufficient to sustain a conviction.
45 Deane, Toohey and McHugh JJ observed that a person must not be convicted of a serious crime on the sole basis of a verbal ambiguity. The words used by the witness in this case were consistent with an absence of positive identification. In the absence of any evidence by way of explanation or elucidation of the witness's words and of any other evidence implicating the accused, the conviction in that case was unsafe and unsatisfactory.
46 It is against this background that one comes to the decision of the High Court in Domican. The High Court held in that case that where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to dangers of convicting on such evidence where its reliability is disputed. A warning in general terms is insufficient. The jury's attention should be drawn to any weaknesses in the identification evidence. The judge should isolate and identify any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence. The judge must direct the jury on the assumption that they may decide to convict solely on the basis of the identification evidence.
Winmar’s case
47 It is apparent from the reasoning of the Court of Appeal in Winmar that, notwithstanding observations of the kind contained in Alexander, the digiboard process is permissible. The judgment included this passage at [55]:
It is our view that this court should firmly reject any suggestion that the digiboard process is inherently inferior to an identification parade. The court should not, as some past authority may tend to suggest, attempt to discourage the use of the digiboard for identification, either by requiring trial judges to warn juries specifically about the dangers of that process as compared to an identification parade, or by requiring trial judges to suggest to juries that the process is inherently flawed, or by suggesting that trial judges should be readier, in the exercise of their discretion, to exclude digiboard identification than they might be to exclude evidence of identification by other means.
48 The court summarised its conclusions concerning identification evidence at [120]. The court reiterated that the trial judge is not required to direct a jury that digiboard identification is unreliable and dangerous per se; a jury should usually be directed that identification of that kind
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- may be affected by the fact that the images are static and two-dimensional; it may be necessary to direct that the identification may be affected by the fact that images on a digiboard do not include identifying (or exclusionary) factors such as height, build and posture; it may be necessary to direct that the jury should take into account the risk that a relative identification has occurred, rather than actual identification; a trial judge is not generally required to direct a jury that discrepancies between a description given by a witness and the appearance of the person identified by the witness may suggest that the identification is unreliable; a trial judge is not required, as a general rule, to direct a jury that stress is a that that may make a witness's identification suspect. Further, where there is any delay between observation and identification, a trial judge should direct a jury that delay is a factor to be considered in assessing the accuracy of identification.
49 It emerges then, from what was said in Winmar, that the digiboard process can give rise to admissible evidence and that many of the complexities or possible difficulties associated with the process can properly be overcome by a sufficient direction given to the jury by the trial judge.
The discretion to exclude
50 As to the question of whether identification evidence ought to be excluded on discretionary grounds, it was said by Gibb CJ in Alexander, at 402 that 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.
51 In Kelly v The Queen [2002] WASCA 134 McKechnie J observed at [43] that if the initial observation was short and the time elapse was long, the judicial discretion to exclude the evidence may be enlivened.
52 However, in Festa McHugh J observed at [51] that the weakness of relevant evidence is not a ground for its exclusion. It is only when the probative value of evidence is outweighed by its prejudicial effect that the prosecution can be deprived of the use of relevant but weak evidence. Evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task.
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53 Let me come now to the issue concerning delay. In Longman the High Court was concerned with a case concerning various sexual offences. Brennan, Dawson and Toohey JJ observed at 91 that the fairness of the trial had necessarily been impaired by the long delay. It was imperative that a warning be given to the jury that, as the evidence of the complainant could not be adequately tested after the passage of more than 20 years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, was satisfied of its truth and accuracy.
54 Put shortly, in circumstances of delay, it may be necessary to warn the jury about the forensic disadvantage to the accused resulting from the passage of a significant number of years, and the need, as a result, to scrutinise the evidence of a complainant or witness purporting to identify the accused with great care before convicting the accused: Hunt v The State of Western Australia [2008] WASCA 37.
55 The effect of a delay in identification was considered by the Court of Appeal in Winmar. The Court of Appeal observed at [108] that since delay does have an effect upon the accuracy of identification, even if it is not possible to say anything about the likely effect of any particular period of delay, trial judges should warn juries that delay between observation and identification is a factor which they should consider in assessing the accuracy of an identification. This was a factor which fell within the observations in Domican at 562 that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence.
56 In Winmar's case the period of delay was comparatively short in that 18 days after the offence, the first complainant selected Winmar from a digiboard. Thus, the Court held at [114] that they were not able to say, in the particular circumstances of the Winmar case, that the trial judge erred in omitting reference to delay.
57 I am, of course, acutely conscious that in the present case the period of delay between the commission of the offence and identification by witnesses pursuant to the digiboard process was considerable (being close to ten years), with the result that the circumstances of the Winmar case must be regarded as completely different. However, the reasoning in Winmar is nonetheless consistent with the notion that identification evidence by the digiboard process may be admissible, notwithstanding a
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- period of considerable delay, provided a sufficient warning is given concerning the forensic disadvantages to the accused and, as to identification, concerning the effect of delay upon powers of recollection.
Submission of no case to answer
58 As to the law concerning a submission of no case to answer, the reasoning of the High Court in May v O'Sullivan (1955) 92 CLR 654 continues to be a useful starting point for resolutions of issues of this kind, as counsel noted in their submissions. The High Court said at 658 that when, at the close of the case for the prosecution, a submission is made that there is no case to answer, the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted but whether on the evidence as it stands he could lawfully be convicted. This is really a question of law. The question to be decided is whether, on the whole of the evidence before it, the jury could be satisfied beyond reasonable doubt that the accused is guilty.
59 In effect, the question is whether the prosecution evidence, taken at its highest, is capable of producing in the minds of a properly instructed jury satisfaction beyond reasonable doubt that each element of the offence has been established.
60 In the recent decision of the Court of Appeal in State of Western Australia v Wood [2008] WASCA 81 the Court of Appeal said (referring to May v O'Sullivan) that the question to be answered on a no case submission is whether, on the evidence as it stands, the defendant could lawfully be convicted.
61 Let me now return to the circumstances of the present case.
The present case
62 It follows from my review of the decided cases that it is open to the prosecution to adduce evidence of identification by utilising the digiboard process; that is, an identification of an accused by witnesses who were on the subject premises at the time by selecting a photo of the accused from various photographs can have sufficient relevance and probative value to be admissible provided there was a positive identification.
63 I do not consider that the passage of close to ten years between commission of the offence and a purported identification by the digiboard process is sufficient of itself to render the proposed evidence inadmissible. The decided cases, and especially Winmar, indicate that identification evidence is essentially a matter of weight. Factors bearing upon the
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- reliability of the evidence can be addressed by careful directions. For present purposes, I must assume that directions of the kind envisaged in Winmar will be given by the trial judge if the matter proceeds to trial.
64 Nonetheless, as indicated by McKechnie J in Kelly, the judicial discretion to exclude otherwise admissible evidence may be enlivened if the observation was fleeting and the delay is substantial.
65 As to the evidence to be given by the witness Jana Supljeglav, I am not persuaded that the evidence to be adduced is sufficient to amount to a positive identification. It therefore does not have sufficient relevance and probative value to be admissible.
66 In that respect, I give weight to the reasoning and ruling in Pitkin, which was approved in Winmar at [116]. It is true that in Winmar, unlike Pitkin, the Court of Appeal considered that an identification to the effect that 'number 2 looks quite familiar' was held to be admissible, but that was because, unlike Pitkin, there was elucidation and explanation from the witness as to what it was that enabled her to make an identification.
67 However, to my mind, in the present case, use of the words 'the only one that stands out to me' is not sufficient, especially when accompanied by an inability to say exactly why such a conclusion had been arrived at. To my mind, as in Pitkin, the words used were consistent with an absence of positive identification.
68 Further, and in any event, even if the evidence be admissible, I consider that it should be excluded pursuant to the discretionary rule for unfairness. Ten years have elapsed. The observation of this witness on the day in question did not concern the moment of demand. She spoke of the man in question being in the queue, and the observation was fleeting. The form of her identification at best was hesitant. In this case, the more limited probative value of the evidence is outweighed by the prejudicial effect.
69 I therefore consider that the evidence of identification to be adduced from Ms Jana Supljeglav must be excluded.
70 As to Ms Robertson, her observation was over one or two minutes in the course of a face to face encounter with the offender. Moreover, the reliability of her description of the offender at that time is arguably supported by the security photographs. During the digiboard process, she presented as a conscientious witness who was alert to the possibility that the passage of time might give rise to difficulties, but she was nonetheless
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- prepared and able to make a confident identification. I do not consider that anything said by the detective beforehand affected the fairness of the process, because she had been told and so understood, which evidence I accept, that the suspect's photo might not be on the board.
71 Thus, it emerges from a review of these considerations, in the light of the decided cases and principles I have described, that in my view, her evidence had probative value and was admissible. I consider that her evidence has considerable force and is not outweighed by the alleged prejudicial effects associated with the delay in the identification.
72 In other words, having regard to my earlier observations, I consider that the evidence of identification pursuant to the digiboard process to be adduced from Ms Robertson is admissible. There was a prompt and positive identification. Her observation was more than fleeting, as she dealt directly with the person handing her the note. Her statements to the police reflect a significant degree of particularity.
73 The probative value of her evidence is higher, with the result that in my view, it is not outweighed by the prejudicial effect as to matters that may have a bearing upon the weight to be given to her evidence. I consider that this can be covered by suitable directions, having regard to the guidelines outlined in Winmar.
74 Put shortly, having accepted that her evidence has significant probative value and is admissible, I do not consider that it should be excluded pursuant to the discretion to exclude any evidence where the strict rules of admissibility operate unfairly against the accused. Factors bearing upon reliability and weight can be adequately covered by directions conforming to the guidelines in Winmar.
75 In dealing with the discretionary rule, I note also that there is no suggestion in this case of bad faith or impropriety in conducting the digiboard process. Further, an alternative process such as an identity parade was not feasible in circumstances where the offender was ten years older than when he came to the bank premises.
76 When I turn to the submission of no case to answer, I consider that the application made to the court by counsel for the accused should be dismissed. The prosecution can rely upon the evidence of Ms Robertson in the light of my ruling. It can rely also upon the bank's security photographs. It follows from my earlier observations that, properly instructed, and upon the basis that the Jana Supljeglav evidence has been
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- excluded, the defendant could lawfully be convicted upon the evidence to be adduced by the prosecution.
77 In arriving at that conclusion I am conscious that there is no confessional or forensic evidence which implicates the accused in the commission of the subject offence. However, it will remain open to the jury to look at the bank's security photographs and the accused in court and to determine if the accused is the offender. To my mind, the reasoning in Smith's case does not apply because that decision by the High Court turned upon the attempt to place before the jury the evidence of a police witness who was not qualified to express an opinion concerning the identity of the person in the bank's security photographs. Here, the jury will simply be arriving at its own conclusion upon the basis of evidence before it.
78 To my mind, the negative identification by Ms Cox is not sufficient to refute the conclusion I have arrived at. It will be a matter for a properly instructed jury to determine whether the evidence of Ms Robertson, assisted by the photographs, is sufficient to negate or rule out any doubt raised by the Cox evidence. It is ostensibly of sufficient strength to do so because Ms Cox saw the offender for only a short time.
79 In summary then, I will rule that the evidence of Jana Supljeglav is to be excluded. However, the application fails as to the other matters, with the result, as matters stand at present, that the case will proceed to trial on the dates previously mentioned.
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