Peterson (a pseudonym) v The Queen
[2014] VSCA 111
•6 June 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0094
| LEO PETERSON (A PSEUDONYM)[1] | Appellant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant.
---
| JUDGES | PRIEST and BEACH JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 6 June 2014 |
| DATE OF JUDGMENT | 6 June 2014 |
| MEDIUM NEUTRAL CITATION | [2014] VSCA 111 |
| JUDGMENT APPEALED FROM | R v [Peterson] (Ruling, 20 May 2014, Judge Gamble) |
---
CRIMINAL LAW – Appeal – Interlocutory appeal – Review of the trial judge's refusal to certify with respect to interlocutory decision – Identification evidence – Applicant arraigned and pleaded not guilty to an indictment containing a charge of intentionally causing serious injury – Complainant identified the applicant from a photograph on Facebook – Whether probative value of identification evidence outweighed by the danger of unfair prejudice – Trial judge refused to exclude the identification evidence – Application was made for certification – Certification refused – Application to review certification decision refused – Interlocutory decision plainly correct – Whether reasons for granting leave ‘clearly outweigh any disruption to trial’ – Application for review – Criminal Procedure Act 2009 (Vic) ss 295 (2)–(3), 296, 297 (2).
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr R F Edney with Mr J L Podmore | Doogue O’Brien George |
| For the Crown | Ms F L Dalziel with Mr N B Batten | Mr C Hyland, Solicitor for Public Prosecutions |
PRIEST JA
BEACH JA:
Introduction
As we will shortly describe in more detail, the applicant has been arraigned in the County Court on an indictment which charges him with intentionally causing serious injury and other charges. He has pleaded not guilty. His trial has been adjourned pending the outcome of his application in this Court.
The present application is made pursuant to 296 of the Criminal Procedure Act 2009 (‘the Act’). It seeks to review the refusal of the trial judge to certify under s 295 (3) of the Act. There is a single ground for review which asserts that the trial judge ‘erred in determining under s 137 of the Evidence Act 2008 that the probative value of the evidence was not outweighed by the danger of unfair prejudice to the accused, and admitting evidence of identification by the complainant through inquiries made on Facebook’. (Comprehension of the ground requires some understanding of the evidence in the case, a matter to which we will later turn.)
For the reasons that follow, we would refuse the application.
Principles governing the application
In circumstances that we will later describe in more detail, the applicant asked the judge to certify pursuant to s 295 (3) (a) of the Act. His Honour refused to do so. Thus in determining the application, this Court is required, by s 296 (4) of the Act, to ’consider the matters referred to in section 295 (3)’; and ’if satisfied as required by section 297, [the Court] may give the applicant leave to appeal against the interlocutory decision’.
Since the interlocutory decision concerns the admissibility of evidence, pursuant to s 295 (3) (a) the Court must consider whether ‘the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case’.[2]
[2]See ZL v The Queen (2010) 208 A Crim R 325, 328-9 [13]-[21].
Section 297 of the Act provides:
297 When leave to appeal may be given
(1) Subject to subsection (2), the Court of Appeal may give leave to appeal against an interlocutory decision only if the court is satisfied that it is in the interests of justice to do so, having regard to –
(a) the extent of any disruption or delay to the trial process that may arise if leave is given; and
(b) whether the determination of the appeal against the interlocutory decision may–
(i) render the trial unnecessary; or
(ii) substantially reduce the time required for the trial; or
(iii)resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial; or
(iv)reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial; and
(c) any other matter that the court considers relevant.
(2) The Court of Appeal must not give leave to appeal after the trial has commenced, unless the reasons for doing so clearly outweigh any disruption to the trial.
…
As we have said, we would refuse the application. Since we regard the trial judge’s ruling as plainly correct, it would not be in the interests of justice to grant leave to appeal. And since it is unattended by doubt, it cannot be said either that the interlocutory decision is ‘of sufficient importance to the trial to justify it being determined on an interlocutory appeal’; or that there is any ‘issue of law, evidence or procedure’ that requires resolution ‘for the proper conduct of the trial’; or that leave is necessary to ‘reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial’. It needs to be emphasised that s 297 (2) contains a clear legislative directive to this Court concerning applications of this kind made after a trial has commenced. We are prohibited from giving leave to appeal after a trial has commenced ‘unless the reasons for doing so clearly outweigh any disruption to the trial’.
Key events
Some of the key events are as follows.
On 24 July 2012, ‘CB’ was attacked by two men, one of whom stabbed him.
CB made a statement to police on 3 August 2012, claiming that it was the applicant who had stabbed him. This led to the applicant being charged by police on 22 August 2012.
By that stage, ‘JD’, who was previously known to CB, had on 26 July 2012 already been arrested and charged. JD later made a statement to police, on 21 November 2012, to the effect that he was one of the two men who attacked CB. The other attacker, he claimed, was the applicant, and it was the applicant who stabbed CB.
On 8 February 2013, JD pleaded guilty in the County Court to recklessly causing serious injury to CB. He gave an undertaking to give evidence in the applicant’s trial, and when sentenced on 22 February 2013, received a sentencing discount as a result.
A contested committal hearing took place on 8 May 2013; and on 9 May 2013, the applicant was committed for trial in the County Court on a charge of intentionally causing serious injury to CB (and other charges). An indictment was filed containing five charges, including intentionally causing serious injury and, in the alternative, recklessly causing serious injury.
On Monday 12 May 2014, the applicant was arraigned. He pleaded not guilty to all charges. The prosecution stated its intention to rely on an identification made by the victim from a Facebook page of the applicant as the individual who stabbed him. This course was opposed by the applicant’s counsel, who sought the exclusion of the identification evidence pursuant to s 114 and s 137 of the Evidence Act 2008.
Following a voir dire, on which various witnesses including CB gave evidence, on 20 May 2014 the trial judge refused to exclude the identification evidence and gave reasons for his decision.
The next day, 21 May2014, counsel for the applicant sought certification under s 295 (3) of the Act, a course that the prosecution opposed. His Honour refused to certify, essentially because he was of the view that his decision to admit the evidence was ‘not attended by sufficient doubt’.[3] The applicant’s trial has been adjourned to 10 June 2014 pending the outcome in this Court.
[3]MA v R (2011) 31 VR 203, 205 [6].
The prosecution case
On the prosecution case, the attack on the victim, CB, arose out of a drug debt.
The victim and JD were regular users of the drug crystal methamphetamine (‘ice’). In around September 2011, the victim gave JD a half gram of ice to sell. Rather than sell the drug, however, JD used it himself, and he did not pay the victim the estimated profit of $400 that a sale would have produced. The debt remained unpaid for some time.
On or about 21 July 2012, in an endeavour to encourage JD to repay what was said to be owed, the victim and another male, JN, visited JD’s residence. Both asked JD to repay the money, and JN struck JD on the upper arm with a tyre lever, causing a bruise.
A few days later, on 24 July 2014, the applicant and JD ingested ice together. JD complained to the applicant that CB and others had been hassling him over a debt. He and the applicant resolved to seek revenge.
Having discovered that the victim was living with his mother in Wantirna, at 11.45pm JD and the applicant drove to the Wantirna address and parked around the corner from it. JD was armed with a tyre lever, and the applicant had a wooden axe handle and a knife.
Once at the victim’s mother’s house, JD knocked on the door and spoke to the victim’s mother, who roused the victim from sleep. The victim went outside with JD. The applicant then emerged from the side of the house. After CB asked who he was, the applicant lunged at the victim and stabbed him in the stomach. JD then produced the tyre lever and hit CB two or three times to the head. As they shortly afterwards drove away, the applicant showed JD a blood-stained knife about 30 centimetres long, saying, ‘Look, I got the dog’.
When he was later treated in hospital, CB was found to have a two centimetre incised wound to the lower abdomen, a two centimetre laceration to his forehead, and a laceration and bruising to his left arm.
There appears to be no issue in the trial that the victim was seriously injured or that JD was the man who struck the victim with the tyre lever. Rather, the central issue in the trial relates to the identity of the man who used the knife. At the time of the attack, the victim had known JD for some time as they had previously been friends, but he did not know the man who had the knife.
JD was not prepared to name the applicant as his co-offender until his statement of 21 November 2012. In fact it was the victim, CB, who first suggested to the police that the applicant was the man who had stabbed him. According to the informant, CB rang him sometime in the days following the making of the first statement to advise him that he had been able to identify the man who had stabbed him from the profile photograph on the Facebook page of a man named ‘[the applicant’s name]’. CB later attended the police station on 3 August 2012 and made a sworn statement to that effect.
At no stage did investigating police seek to have CB attempt to formally identify the man who stabbed him by means of a photoboard or an identification parade. On the voir dire, the informant assigned two reasons. First, he believed that neither procedure would represent a fair test for the victim since the applicant’s appearance had not changed for some years. The photograph from the Facebook page would be just too similar to the photographs that police already had of the applicant and also too similar to his appearance in person. Secondly, the informant was concerned about the possibility of a ‘displacement effect’. There was a danger that CB could select the applicant from a photoboard or in an identification parade, not because he resembled the offender, but rather because he resembled the man whose photograph he had seen on Facebook.
As we have said, CB was stabbed by someone whom he did not know. Whilst he was recovering from his injuries in hospital, CB was visited by a number of people, one of whom told him something that aroused his suspicions in relation to the identity of the man who had stabbed him. The victim claims to have been told that earlier on the day of the stabbing, a man named [the applicant’s name] had contacted another man, ‘SO’, and made enquiries about him. As it turns out, at the time SO was a friend of both the victim and the applicant.
That information created a suspicion in the victim that the man named [the applicant’s name] may be the man who had stabbed him. His suspicions were further aroused when he later accessed the applicant’s Facebook page, since he noticed that both JD and SO were listed among the applicant’s Facebook friends.
On the voir dire, both CB and his female friend, ‘Courtney’, gave evidence to the effect that CB made an immediate and confident identification from the profile photograph on the Facebook page. CB made specific reference to the man’s eyes, in much the same way as he had done when he gave the physical description of the man who stabbed him to the police in his first statement.
The applicant’s submissions to the trial judge
Defence counsel submitted that the evidence of purported identification was of low probative value. That was because the victim’s opportunity to observe the man who stabbed him was limited, and the circumstances in which he came to suspect the applicant and then identify him from a single photograph on his Facebook page were inherently fraught with a strong flavour of suggestion and unreliability.
Counsel argued that the attendant danger of unfair prejudice flowing to the applicant is unlikely to be removed or reduced by judicial direction. The unfair prejudice is the danger that the jury will give the evidence of the victim more weight than it deserves. Defence counsel contended that the jury will, in effect, be beguiled by the simplicity of that evidence and not properly scrutinise it with the care that is needed. The problem is exacerbated by the fact that another potentially unreliable witness, JD, nominates the applicant as the person who stabbed the victim. It was submitted that the jury will simply use the evidence given by JD — who is an accomplice and has received a discount on his sentence — to ‘plaster over the cracks’ in the victim’s evidence of identification. The jury will be incapable of applying directions concerning the evidence of the purported identification by the victim. Counsel also submitted that the jury will too readily accept CB’s identification of the applicant and use it to bolster the evidence of the accomplice, JD. The jury would be incapable of applying any directions about the care that must be taken in evaluating the potentially unreliable evidence of the accomplice.
Defence counsel put that the test set out in s 137 of the Evidence Act 2008 had been satisfied, since the probative value of the victim’s evidence is outweighed by the danger of unfair prejudice. There is a real danger, it was argued, that the jury would combine two species of unreliable evidence and thus produce a dangerous outcome. In the circumstances, there is a danger that the problems with one form of potentially unreliable evidence will be compensated for by the other, thus producing an unfair result.
The impugned ruling
In a very careful and detailed ruling, the trial judge concluded that, notwithstanding that there are deficiencies in the identification evidence, the probative value of the evidence remains significant. The evidence, if accepted, goes directly to proving the real fact in issue in this case, namely the identity of the man who stabbed the victim.
The trial judge concluded that it would be open to the jury to give the evidence of the victim, both as to his initial physical description of the man who stabbed him and his later identification of that individual, significant weight in their assessment of the real issue in this case. It would be open to the jury to find that the evidence was important in determining the identity of the person who used the knife.
To the extent that there was a danger of unfair prejudice to the applicant — namely the risk that the jury may give the victim’s evidence describing the unknown offender and then subsequently identifying him as the applicant undue weight — that danger could, the judge found, be sufficiently ameliorated by judicial direction ‘and through properly focused addresses from counsel, particularly defence counsel’. The judge had ‘no reason to doubt that jury will be well equipped and able to comprehend the risk of unreliability in the evidence and to deal with it accordingly’.
In those circumstances, the trial judge concluded that the probative value of the impugned evidence was not outweighed by any danger of unfair prejudice.
The applicant’s submissions in this Court
Counsel for the applicant submitted that the fundamental fact in issue is the identification of the individual who stabbed CB. The identification of the applicant by the victim, so it is submitted, derives from two sources. First, a statement made by the victim on 29 July 2012, in which he does not identify the applicant. Secondly, a further statement made by him on 3 August 2012, that purports to identify the applicant after the victim searched Facebook after being told in hospital the name of the applicant. It was argued that the probative value of the evidence was outweighed by unfair prejudice and should have been excluded pursuant to s 137 of the Evidence Act 2008. Several reasons are advanced.
First, it was submitted that the evidence of the identification by the victim is ‘beset by multiple problems of unreliability that directly and fatally undermine the probative value of the evidence’. Included are that the initial observation of the second individual was accompanied by the following features: a brief sighting of a stranger wearing a ‘hoody’ at night in poor lighting, having recently awoken from a lengthy sleep while withdrawing from drugs, in circumstances where the events were traumatic and ‘bad blood’ existed between the victim and JD.
Secondly, the victim’s first statement to the police provided only a very limited description of the person who stabbed him, his description of the face being confined to the person having distinctive eyes.
Thirdly, an unknown person when he was in hospital provided to the victim the name of the applicant, leading the victim to use Facebook to see what the person looked like. Having done so, he purported to identify that person as the person who had stabbed him.
Fourthly, prior to searching Facebook, the victim had a suspicion that the person ‘[the applicant’s name]’ was the person who had stabbed him.
Fifthly, given these circumstances not only were the risks of displacement high but there was an overlay of ‘suggestibility’ in that the applicant had been nominated by an unknown person as being involved in the assault. This was not, so it was argued, a case of ‘spontaneous recognition’. Instead, CB was told about the identity of the applicant and only then looked at a photograph of him.
The applicant’s counsel also submitted that occurrences of miscarriages of justice because of mistaken identification are well-known. It was argued that the use of Facebook by CB without any of the safeguards that are put in place by investigating officials to guard against mistaken identifications, is to permit a ‘dilution’ of those requirements that ensure that only evidence of a suitable probative value is admitted before a jury.
Some reliance was placed on Strauss,[4] which was said to be ‘instructive’. In that case Peek J quashed a conviction for assault imposed in the Magistrates’ Court. The appellant had been identified by the victim and another witness from photographs on Facebook. Peek J found that the identification evidence was likely to be contaminated because it was made in highly suggestive circumstances, and made some observations about the dangers of ‘Facebook identifications’.[5]
[4]Strauss v Police (2013) 115 SASR 90.
[5]Ibid 103–4 [34]–[37].
Ultimately, counsel for the applicant submitted that to permit evidence of such poor quality is to heighten to an unacceptable level the risk of a miscarriage of justice.
Resolution
Part 3.9 (ss 113 to 116) of the Evidence Act 2008 deals with Identification evidence. Section 115 deals with picture identification evidence, and is limited to identification made by a person ‘examining pictures kept for the use of police officers’; and s 116 sets out the directions that a judge must give to a jury once identification evidence has been admitted. By reason of s 114 (2), visual identification evidence — defined in s 114 (1) to mean ‘identification evidence relating to an identification based wholly or partly on what the person saw but does not include picture identification evidence’ — is not admissible unless an identification parade was utilised by the police or ‘it would not have been reasonable to have held such a parade’, and the identification of the accused was made without any intentional influence on the witness to identify the accused.
By the time that the victim came to make his statement to police on 3 August 2012, claiming that it was the applicant who had stabbed him, he had already viewed the applicant’s image on Facebook. As we have earlier observed, following CB’s nomination of the applicant as the assailant with the knife, police made no attempt to have CB attempt to formally identify his attacker by means of a photoboard or an identification parade. One of the reasons given by the informant was that he was concerned about the possibility of a ‘displacement effect’. In other words, any identification from a photoboard or identification parade would be open to the criticism that it was polluted by the antecedent viewing of the photograph on Facebook.
In our opinion, the fact that CB had previously viewed a photograph provided a sound reason for the police not conducting an identification parade. To use the language of s 114 (2) (b), ‘it would not have been reasonable to have held such a parade’. Any later identification after viewing the photograph on the Facebook page would have been open to the criticism that it was tainted by the displacement effect. As Stephen J said in Alexander:[6]
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.
[6]Alexander v The Queen (1981) 145 CLR 395, 409.
For these reasons, the provisions of s 114 (2) were not engaged.
Relying on s 137 of the Act, counsel for the applicant contended, both before the trial judge and in this Court, that the probative value of the evidence of CB’s identification of the applicant from the photograph on Facebook was outweighed by the danger of unfair prejudice. Section 137 has been characterised as a statutory embodiment of the Christie[7] discretion at common law.[8] It provides:
[7]R v Christie [1914] AC 545.
[8]Dupas v The Queen (2012) 218 A Crim R 507, 524 [63], 525 [65]–[67].
137 Exclusion of prejudicial evidence in criminal proceedings
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.
When a trial judge is asked to exclude evidence pursuant to s 137, in assessing probative value he or she must evaluate the weight that the jury rationally could attach to the impugned evidence. In so doing the judge is not required to assume that its reliability will be accepted. Resolution of the capacity of the evidence rationally to affect the determination of a fact in issue requires the judge to make some assessment of the weight that the jury could, acting reasonably, give to the evidence. If it be contended that the quality — or the frailties — of the evidence would result in the jury attaching more weight to the evidence than it deserves, the trial judge is required to assess the extent of the risk. But the trial judge is not required to gauge the weight that the jury will or would give to the evidence. Instead, the judge is obliged to assess what probative value the jury could give to the evidence, and balance against it the risk that the jury will give it disproportionate weight.[9]
[9]Ibid 524–5 [63].
In Strauss,[10] Peek J warned against the use of Facebook for identification purposes. His Honour made a number of observations which are pertinent to the present application, and which are pressed upon us by the applicant:[11]
It is undeniable that this new phenomenon may lead to the acquisition of suspects that police might not have obtained themselves. But what also must be stressed is that the process itself has very great problems in relation to the potential contamination of evidence necessary for a conviction in a court of law. Such problems are likely to arise when a victim of a crime, or a witness to it, searches Facebook looking for the offender using what information they have, or think they have, about the offender. This is, of course, what occurred in the present case. …
So called ‘Facebook identifications’ have none of the safeguards which accompany a properly executed formal identification procedure conducted by the police. Purported Facebook identifications from group photographs are particularly dangerous in that they present a seductive and deceptive air of being a plausible identification but in fact rarely involve a group of people each having similar features to the accused; they suffer from ‘foil bias’ as discussed above. Consequently, if a suspect with similar features to the real offender is depicted in a photograph of a group whose other members lack those features, the suspect will likely be identified by a witness as the offender in the fervour of the superimposed ‘Facebook chat’ and the pressure of the moment. The displacement effect will then later proceed to erase from the memory the subtle differences between the real offender and the person identified. Once again, there is the real danger that this is exactly what occurred in the present case …
Of course, the position is made even worse when, as occurred in the case of the present victim, a person is actually given the name of the man asserted by others to be the offender and then locates in Facebook a photograph of a group of people, one of whom is tagged with that name. If the appearance of that tagged man is not obviously inconsistent with a memory the person actually has of the actual offender, a ‘Facebook identification’ is highly likely to follow. That likelihood can only be increased in the circumstances of the present case where the victim had been drunk at the time of the assault and, at the time of the so called Facebook identification, was in the throes of a distracting hangover and pain resulting from his injuries and was harbouring a visceral (and justified) grievance against his attacker.
[10]Strauss v Police (2013) 115 SASR 90.
[11]Ibid 103–4 [35]–[37].
It cannot sensibly be argued that the impugned evidence is other than probative. Having looked at a photograph, the victim asserts that the photograph is a depiction of the man who stabbed him. The photograph depicts the applicant. Thus the evidence could rationally affect the assessment of the probability of a fact in issue, the fact in issue being the identity of the man who stabbed the victim.
There are several matters upon which the applicant’s counsel rely to try and make good the proposition that the undoubted probative value of the evidence is outweighed by the danger of unfair prejudice. Thus, among the criticisms made of the evidence, it is argued that the circumstances of the victim’s initial observation of the knife-wielding attacker were less than ideal, and his initial description to police was limited (save that he described the person as having distinctive eyes). Importantly, so it was argued, this was not a case of spontaneous recognition, but a case where there was a significant element of suggestion and suggestibility.
In our opinion, the frailties in the evidence, and the criticisms made of it, are matters which the jury are capable of evaluating with the benefit of proper judicial direction. It will be remembered that both CB and his friend, Courtney, gave evidence to the effect that CB made an immediate and confident identification from the profile photograph on the Facebook page, CB making specific reference to the man’s eyes. The victim had made specific reference to his attacker’s eyes in his initial police statement of 29 July 2012. In that statement he described the man as follows:
He was wearing a hoody with the hood on his head. He was shorter than me, and stocky. He was clean shaven and between 30 and 40 years of age. His eyes were really distinctive, they are really piercing.
There is, in our view, no real prospect that the probative value of the evidence will be outweighed by any danger of unfair prejudice. The reliability of CB’s identification from the Facebook page is pre-eminently a jury question. Properly instructed, we have no doubt that the jury will be capable of making an assessment of the credibility and reliability of the victim’s identification, after adequately scrutinising the suggested shortcomings in the evidence (including the suggested lack of safeguards identified in Strauss). With the benefit of appropriate judicial direction, it is unlikely that the jury will give the evidence undue weight.[12]
[12]See MG v R (2011) 31 VR 203, 209–10 [25].
The judge’s ruling refusing to exclude the identification evidence is not attended by doubt.
Conclusion
For the foregoing reasons the application should be dismissed.
---
11
5
0