Low (a pseudonym) v The King
[2024] VSCA 146
•21 June 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2024 0083 |
| JAMES LOW (A PSEUDONYM)[1] | Applicant |
| v | |
| THE KING | Respondent |
[1]To avoid the possibility of prejudice to the administration of justice, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | PRIEST, TAYLOR and BOYCE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 21 June 2024 |
| DATE OF JUDGMENT: | 21 June 2024 |
| DATE OF REASONS: | 27 June 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 146 |
| JUDGMENT APPEALED FROM: | DPP v Low (a pseudonym) (Ruling No 4) [2024] VCC 707 |
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CRIMINAL LAW – Interlocutory appeal – Sexual offending against children – Identification evidence – Identification from photoboards – Displacement effect – Whether probative value of evidence outweighed by the risk of unfair prejudice – Leave to appeal refused.
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| Counsel | |||
| Applicant: | Mr J Blackley | ||
| Respondent: | Mr T C Wallwork with Mr J McCarthy | ||
Solicitors | |||
| Applicant: | SLKQ Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST JA
TAYLOR JA:
Introduction
The applicant faces trial in the County Court for sexual and associated offending allegedly committed in February 2019 against two female child complainants, ‘BR’ and ‘DW’. In relation to BR, he is charged with sexual assault of a child under 16 (charge 1) and false imprisonment (charge 5); and in relation to DW he is charged with sexual penetration of a child under 16 (two charges – charges 2 and 3), trafficking in a drug of dependence to a child (charge 4) and false imprisonment (charge 6).
For the purposes of the trial there appears to be no dispute that an adult male committed the alleged offences, the principal issue in the trial being whether the applicant is that man. The applicant denies being involved in, or being present during, any of the alleged offending.
On 18 April 2019 and 15 May 2019 respectively, DW and BR both independently identified the applicant from photoboards shown to them by police as the perpetrator of the offences against them (‘the identification evidence’).
The applicant sought exclusion of the identification evidence relying on s 137 of the Evidence Act 2008 (‘EA’). Notwithstanding that the identification evidence in this case is ‘picture identification evidence’ as defined in s 115(1) of the Act — s 115 being specifically concerned with the exclusion of picture identification evidence — the applicant did not rely on the provisions of s 115, instead relying solely on s 137.
In a ruling made 2 May 2024 (detailed reasons being delivered on 22 May 2024), a judge in the County Court refused to exclude the identification evidence (‘the ruling’ or ‘the interlocutory decision’).
By a notice filed on 10 May 2024, the applicant sought leave pursuant to s 295(3)(a) of the Criminal Procedure Act 2009 (‘CPA’)[2] to appeal against the interlocutory decision on a ground that contended that the judge erred
by failing to exclude the photo board identification evidence, pursuant to s 137 of the Evidence Act, in circumstances where the probative value was outweighed by the danger of unfair prejudice.
[2]On 22 May 2024, the judge certified under s 295(3)(a). See DPP v Low (a pseudonym) (Ruling No 6) [2024] VCC 709.
On 21 June 2024, having heard oral argument by counsel for the applicant, we made an order refusing leave to appeal, and indicated that we would subsequently provide reasons for doing so. These are those reasons.
Background
In February 2019, BR and DW, and their friends ‘ET’, ‘JS’ and ‘MD’, all aged about 14 years, lived in a small country town in north-central Victoria.
During the afternoon of 16 February 2019, BR and DW and their friends went to various houses in the town intending to purchase cannabis. Late in the afternoon of that day, they went to a particular house to do so. A man answered the door. The prosecution case is that the applicant was that man.
BR and DW told the man they wanted to buy some ‘weed’. He initially refused, saying they were underage. The complainants gave him $70 for the cannabis. He took them to the backyard of the property where he counted the money. After doing so, he said they were $30 short and that they would need to ‘work it off’.
The man then grabbed BR’s breast (charge 1), before taking DW into a garden shed where he first inserted his penis into her vagina (charge 2), and then her anus (charge 3). BR meanwhile was contacting friends via text messages on her telephone. She decided not to leave the premises, however, because of concern for DW’s welfare.
BR and DW then walked across the street with the man to another house. In the 30 to 45 minutes they were there, DW told BR that the man had raped her. The man left the house for a short time and returned with cannabis. He told the complainants that they could not leave the house until they all smoked some cannabis together (charges 5 and 6). DW, the man and another male occupant of the house smoked cannabis together (charge 6). BR declined to consume the drug. The complainants then left the house and walked to an adjacent park where they told their friends what had happened.
On 30 March 2019, DW’s mother became aware of what had happened to her daughter and reported the matter to police.
The next day, 31 March 2019, both BR and DW took part in VARE[3] interviews with police. ET participated in a VARE statement to police the following day, 1 April 2019.
[3]Video and Audio Recorded Evidence. See CPA, ss 366 and 367.
A little over a week later, on 9 April 2019, police arrested, interviewed and charged the applicant.
On 18 April 2019, Detective Senior Constable Jacqui Stubbins showed DW a photoboard for identification purposes. DW made a positive identification of the applicant and made a statement to that effect.
JS and MD each took part in VARE interviews with police on 8 May 2019.
A week later, on 15 May 2019, Detective Sergeant Renee Campbell showed BR a photoboard for identification purposes. BR also made a positive identification of the applicant and made a statement to that effect.
The following day, 16 May 2019, police showed a photoboard to ET. She did not recognise anyone in the photoboard and did not select a photograph.
In evidence given on voir dire under s 198A of the CPA, Detective Stubbins explained the production of photoboards. Her evidence was that a name is entered into a computer application used to generate photoboards and a photograph of the suspect is selected. The computer application then automatically populates the photoboard with 11 photographs of people of a similar description. Detective Stubbins’ evidence was that the application
looks at the hair colour, the tattoos, the facial expressions … and goes through driver licences, LEAP[[4]] photographs, all that kind of stuff, and chooses, automatically, the other 11 photographs to put in a photo board.
Detective Stubbins said that she had no input as to which 11 photographs were chosen since the application creates the selection based on the photograph of the suspect. Once the photoboard was generated and printed, Detective Stubbins compiled two manila folders, one with the photoboard and another with all the statements and information for the witnesses to read through prior to completing the identification process. On her assessment, the photoboards presented to BR and DW included a fair spread of photographs.
[4]Law Enforcement Assistance Program.
Evidence was given on voir dire by DW and ET that while at BR’s house they searched for the man who offended against DW on Facebook on at least two occasions, using the name [‘James’]. BR was not present when this occurred. DW could not remember the date she had done that, but believed the second search occurred after the photoboard was shown to her. ET gave evidence that while she was unsure exactly when the Facebook search took place, she thought she and DW looked for the offender’s profile before her VARE on 1 April 2019.
In her evidence, DW clarified she only became aware of the full name, [‘James Low’], after she was provided with the VARE transcript (which, according to the evidence, was after her identification of the applicant from the photoboard). Prior to being provided with the transcript, DW did not know the man’s last name. With respect to the second Facebook search, DW and ET searched using the full name [‘James Low’], and located [‘James Low’s’] Facebook profile. DW’s evidence was that the search occurred after she had identified the offender from the photoboard and had been given the VARE transcript (which, on the evidence, had been provided to her on 20 May 2021). DW’s evidence was that the second Facebook search was the only time she located the man’s profile. Neither DW nor ET remembered ever showing BR the Facebook profile.
In her evidence on voir dire, BR could not recall ever searching for the man on Facebook with ET and DW. BR believed she learned of the name ‘James Low’ from the police when she recorded her VARE, but did not think the name was important. She said that she did not share the name with ET or DW, and did not speak to anyone about the man’s identity after the offending.
The ruling
As we have said, in seeking exclusion of the identification evidence the applicant relied solely on s 137 of the EA, which provides that in a criminal proceeding ‘the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused’.
The judge found that, in the absence of any credible evidence of collusion or contamination, the identification evidence — of DW identifying the applicant’s photo on 18 April 2019, and of BR identifying the applicant’s photo on 15 May 2019 — has ‘high probative value’. BR’s and DW’s identifications ‘are independent and support each other’.
Moreover, the judge considered it to be important that the applicant’s record of interview in effect confirms the accuracy of the identification evidence since he admits that he occupied the house that the complainants first went to and was the person who opened the door to them, and confirmed that they could have asked him to purchase cannabis. That is significant given the complainants’ evidence that the man who initially opened the door to them is the same man who committed the offences against them.
The judge accepted a prosecution submission that both BR and DW had significant opportunities to make ‘unhurried’ observations of the man who offended against them, both before and after the alleged offending at the first premises they visited, and later at the premises across the road. There were no obvious limitations on the complainants’ ability to observe the alleged offender’s face. He was in close proximity to them over a relatively lengthy period.
Importantly, the judge observed — an observation that we agree with having viewed the photoboards — that the applicant neither
in age or appearance, ‘stands out from the crowd’. I do not accept that in the photograph of him the [applicant’s] neck tattoo is a very distinctive feature differentiating him from the others. Indeed, another person who appears on both photo boards and who is not dissimilar in appearance to the [applicant], appears to have a neck tattoo.
The judge considered that the photoboards had been ‘reasonably constructed’, and there was no aspect of the manner in which the police investigated that has had the effect of reducing the probative value of BR’s or DW’s identification evidence. Specifically, the judge did not accept that either complainant’s identification of the applicant as the alleged offender was in any way the result of suggestion by investigating police.
There was no risk, the judge said, of any displacement effect operating on BR’s or DW’s respective minds as a result of any Facebook searches they carried out. The judge was satisfied that DW’s Facebook search occurred after her photoboard identification of the applicant on 18 April 2019, and after the provision to her of the transcript of her VARE by police on 20 May 2021; and that BR was never made aware of the Facebook searches conducted by DW or of any information concerning the accused derived from such searches.
Further, the judge did not accept that there was any danger of unfair prejudice. Any ‘deficiencies or limitations’ in the identification evidence ‘can be fully exposed to the jury and can be the subject of strong judicial directions in accordance with [s 36 of] the Jury Directions Act 2015’.
Applicant’s submissions in this Court
In written submissions, counsel for the applicant submitted that the relevant circumstances surrounding the identification evidence indicate the probative value of the evidence taken at its highest, is not very high at all. Those surrounding circumstances include:
·first, the complainants and the man who committed the offences were unknown to each other;
·secondly, the complainants learned the applicant’s name through unverified means;
·thirdly, the complainants — or at least DW (and ET) — identified the applicant via Facebook ‘at a time unknown’;
·fourthly, the witnesses influenced each other in the course of the Facebook identification;
·fifthly, there is a high risk of the ‘displacement effect’ influencing the photoboard identification;
·sixthly, there was ‘a significant passage of time’ between the observations of the witnesses and the photoboard identification;
·seventhly, the method of identification was via a photoboard without giving the applicant an opportunity to participate in an identification parade;
·eighthly, there are inherent limitations in photoboard identification;
·ninthly, the construction of each photoboard, specifically the array of the photographs were generated without regard to the initial physical description given by either witness;
·tenthly, each identification witness understood their role was to select the photograph which looked most similar to the offender;
·eleventhly, each identification witness agreed that the majority of the photographs within the array could be disqualified during the photoboard identification process because of the dissimilarity of each photograph to the initial physical description given to police; and
·finally, BR said in relation to the photograph she selected that, only one feature of her initial description which she gave police could be observed and it had ‘a little’ similarity.
Several of the matters referred to immediately above were also specifically relied upon by the applicant’s counsel during oral submissions, in the course of which three principal arguments were advanced:
·first, the judge erred in his findings as to when the Facebook searches were performed by DW and ET and ‘what was found’;
·secondly, in assessing the risk of unfair prejudice with respect to the identification evidence of DW, the judge erred by failing to give material consideration to the risk of prejudice that would inevitably result, because of ‘the requirement to introduce the Facebook identification evidence before the jury’; and
·thirdly, the judge’s ruling with respect to the admissibility of the identification evidence of both BR and DW ‘was not reasonably open on the evidence’.
The applicant’s counsel submitted that if the Facebook searches were conducted prior to the photoboard identification, there is an unacceptable risk of displacement, making the probative value of the identification evidence low. It was not open to the judge, counsel submitted, to find that no Facebook searches that located the applicant were performed prior to the photoboard identification. Counsel contended that, taking the evidence of DW and ET at its highest, it would not rationally be open to find that no Facebook searches that located the applicant were performed prior to the photoboard identification. If this is correct, the risk of displacement in the case of DW’s identification leaves her evidence with marginal probative value, to the extent it fails the relevance test.
Counsel submitted orally that BR expressed her conclusion that the photo of the applicant depicted the perpetrator in unqualified terms — in her words, with ‘one thousand per cent’ certainty — and ‘there is always difficulty going behind that, or, at least, exposing the weaknesses’. Very importantly however, counsel conceded that the evidence of DW and ET did not support the contention that BR’s evidence had been influenced by any discussions that they may have had with her. Indeed, counsel frankly acknowledged that he did not make any argument based on the displacement effect so far as BR’s identification evidence was concerned ‘because it’s not supported by the evidence’. To the extent that such an argument was to be found in his written contentions, he did not pursue it. Any argument based on the displacement effect, counsel said, ‘only applies to DW’, ‘both in respect of the probative value and the risk of unfair prejudice’.
The applicant’s counsel argued that this is a case in which the risk of displacement goes to not only the probative value, but also to unfair prejudice. In order to try to meet the photoboard identification evidence, counsel submitted, the applicant would need to introduce the Facebook identifications (‘which would ordinarily be inadmissible under s 114 EA’) to suggest the possibility of displacement and innocent contamination. Finally, counsel contended that there is no direction that can cure the risk of unfair prejudice.
The respondent’s submissions
In written submissions, counsel for the respondent submitted that the judge clearly was correct to find that the impugned identification evidence had high probative value. Among other things, the respondent’s counsel pointed to the applicant’s admission to police that he occupied the first house visited by the complainants; the applicant’s statement to police that the complainants could have asked him to purchase cannabis; the fact that BR and DW both had a significant opportunity to observe the offender; the fact that they both independently identified the offending male using different photoboards (in which the applicant did not ‘stand out from the crowd’); and there was no appreciable delay between the alleged offending and the photoboard identifications. The respondent’s counsel submitted that the judge was correct to find that there was no risk of displacement, or any risk of unfair prejudice.
Discussion
In our opinion, this application for leave to appeal was conspicuously without merit. That it was hopeless should have been obvious to those advising the applicant. Given that the system of justice in this State is already overloaded, legal practitioners have a duty to the Court to avoid dissipating its resources by bringing such applications.[5] As was observed in Frazier:[6]
Unmeritorious applications of this kind are a misuse of Court time and a waste of (mostly public) money. Legal advisers to parties in criminal proceedings should bear steadily in mind that the procedure for interlocutory appeals is to be invoked responsibly and sparingly.
[5]See DPP v Pace (a pseudonym) (2015) 45 VR 276, 283–4 [24]–[26] (Priest and Beach JJA).
[6]Frazier (a pseudonym) v The Queen [2017] VSCA 370, [36] (Maxwell P and Kyrou JA).
The contention that BR’s identification of the applicant from the photoboard may have been influenced or tainted by the displacement effect may shortly be disposed of. As we have said, the applicant’s counsel conceded in oral argument — he had no realistic choice other than to do so — that the evidence before the judge did not support the contention that BR’s evidence had been influenced by DW or ET, so that counsel did not pursue any argument based on the displacement effect with respect to BR’s identification evidence.
Even without counsel’s concession, however, we consider it to be plain that the only conclusion that the judge could have reached on the available evidence was that at no stage was BR ever made aware of the Facebook searches conducted by DW and ET, or of any information concerning the applicant derived from those searches. In those circumstances, there could have been no possible risk that the displacement effect was operating on BR’s mind at the time of her photoboard identification of the applicant.
Further, we consider that the judge was also correct to conclude that there was no risk of any displacement effect influencing DW’s identification evidence. The judge expressed the following conclusions about the two Facebook searches by DW and ET:
Following the evidence given at the voir dire conducted on 22 March 2024, I am satisfied on the whole of the evidence that the first Facebook search conducted by DW and ET using the search term [‘James’] occurred after the alleged offending conduct and before DW’s VARE was conducted on 31 March 2019. I am further satisfied on the whole of the evidence this search did not reveal anything concerning the [applicant].
Moreover, I am satisfied on the whole of the evidence that the second Facebook search conducted by DW and ET using the search term [‘James Low’] occurred after DW’s photo board identification of the [applicant] on 18 April 2019 and after the provision to her of the transcript of her VARE by police on 20 May 2021. Accordingly, I am satisfied there is no risk of a displacement effect arising from the Facebook searches operating on DW’s mind at the time of her photo board identification of the [applicant].
The evidence before the judge revealed the following. DW said that on at least two occasions she and ET searched Facebook for the man who had offended against DW. On the first occasion, they searched only for [‘James’]. DW gave a statement to police, in which she said she did not remember the exact date of the first search, but that she believed it could have occurred after the photo board was shown to her. ET’s evidence was that, while she was unsure exactly when the Facebook search took place, she thought that she and DW looked for the offender’s profile before her VARE on 1 April 2019. They were, however, unable to locate his profile. In her evidence on voir dire, DW made it clear that she only became aware of the full name, [‘James Low’] after police provided her with the transcript of her VARE, marked with the name [‘James Low’]. Up to that point, DW did not know the man’s last name.
According to DW, she and ET conducted the second Facebook search using the full name [‘James Low’], and were able to locate [‘James Low’s’] Facebook profile. DW was quite adamant in her evidence about the timing of this second ‘full name’ Facebook search. She was clear that the search occurred after she had made her identification of the applicant from the photoboard (on 18 April 2019) and after she had been given the transcript of her VARE (20 May 2021). DW was emphatic in her evidence that police gave her the transcript only after she had already identified the man who had offended against her from the photoboard. Her evidence was that the second Facebook search was the only time DW located the man’s profile. Plainly, if DW’s evidence be accepted — as far as we can see, there were no sound reasons to reject it — the hypothesis that her evidence may have been contaminated by reason of the displacement effect completely evaporates.
Before the trial judge and in this Court, however, counsel for the applicant endeavoured to seize on the evidence of ET. She was less certain about when she and DW together discovered the Facebook profile. ET did not remember an occasion where they searched for the offender’s full name, and her memory was that she and DW only looked up ‘James’. ET remained confident, however, of only searching on Facebook with DW. Significantly, ET also remembered DW spotting the profile and saying something like, ‘That’s him’.
Properly understood, ET’s evidence was not inconsistent with DW’s in any material respect. Certainly it did not derogate from DW’s evidence that the second Facebook search — the first apparently having rendered no result — was performed after the photoboard identification. Hence, the judge was correct to find that there was no risk of the displacement effect arising from the Facebook searches operating on DW’s mind at the time of her photoboard identification of the applicant.
Given that the judge indubitably was correct to find that nothing in the circumstances surrounding the identification evidence engaged the provisions of s 137 of the EA, it is unnecessary to discuss the authorities concerning identification evidence relied upon by the applicant’s counsel.[7] It is also unnecessary to consider whether the present application fell to be determined according to House[8] principles — as the applicant’s counsel appeared to assume — or according to the correctness standard discussed in Warren v Coombes,[9] applied in GLJ.[10]
[7]In particular, Moreno (a pseudonym) v The Queen [2023] VSCA 98 (Priest AP, Niall and Kaye JJA); Fowkes v The King (2023) 72 VR 95 (Emerton P, Priest and Kaye JJA); Dempsey (a pseudonym) v The Queen [2019] VSCA 224 (Beach, Kaye and Ashley JJA); and DPP v Hague [2018] VSCA 39 (Maxwell P, Priest and Beach JJA).
[8]House v The King (1936) 55 CLR 499, 504–5 (Dixon, Evatt and McTiernan JJ).
[9](1979) 142 CLR 531, 552 (Gibbs ACJ, Jacobs and Murphy JJ).
[10]GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857 (‘GLJ’). See also Ballard (a pseudonym) v The King [2024] VSCA 26 (Priest and Walker JJA, and Croucher AJA); Porter (a pseudonym) v The King [2024] VSCA 127 (Priest, Boyce and Kaye JJA); Duncan (a Pseudonym) v The King [2024] VSCA 27 (Priest and Beach JJA). See also Moore (a pseudonym) v The King [2024] HCATrans 42.
BOYCE JA:
I have had the considerable advantage of reading in draft the reasons of Priest and Taylor JJA. Substantially for the reasons that their Honours give, I agreed that leave to appeal must be refused. It is unnecessary to consider how the High Court’s decision in IMM v The Queen[11] applies in a case such as the present.
[11](2016) 257 CLR 300.
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