R v Ashwood

[2004] QDC 150

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Ashwood [2004] QDC 150

PARTIES:

CHAD EDWARD ASHWOOD  (Applicant)

AND

THE QUEEN  (Respondent)

FILE NO/S:

403/03

DIVISION:

Criminal

PROCEEDING:

Application pursuant to s592A of the Criminal Code

ORIGINATING COURT:

District Court Maroochydore

DELIVERED ON:

13 May 2004

DELIVERED AT:

Maroochydore

HEARING DATE:

10 May 2004

JUDGE:

Judge J.M. Robertson

ORDER:

I rule that the evidence is inadmissible.

CATCHWORDS:

EVIDENCE - S592A pre-trial application for exclusion of identification evidence on discretionary grounds; whether evidence so tainted as to be devoid of probative value.

Cases:

Pitkin v The Queen (1995) 130 ALR 35

Festa v The Queen (2001) 208 CLR 593

Alexander v The Queen (1981) 145 CLR 395

COUNSEL:

Mr S Lewis  (for the applicant)

Mr G Cummings (for the respondent)

SOLICITORS:

Legal Aid Queensland, Maroochydore (for the applicant)

Department of Public Prosecutions (for the respondent)

1. The defence seek an order that certain identification evidence be excluded on the basis that its probative value is very little and its prejudicial value in the circumstances of the case is very high.

1. Both the complainant McKenzie and the defendant were inmates of cellblock N10 at the Woodford Correctional Centre on 2 July 2002.

1. The complainant says he was playing cards with some other inmates between 3.30-4.00pm when an incident occurred in which sauce was tipped down his back by others. There was some argument, and some abuse, and he went away to clean up. When he returned he noticed the man he says is ‘Chad’ under the stairs near where the incident had occurred at a table. The evidence will establish that the two had been inmates in that cell block for a matter of days; and were strangers to each other. When he returned, there was some teasing: he got up and called them all “cunts” and proceeded to walk away, when he says he was attacked by the man ‘Chad’. He describes a fight over some time, culminating in the man ‘Chad’ biting off part of his ear which it is accepted amounts to grievous bodily harm.

1. On the 5 July 2002, the complainant was shown a folder containing photographs of inmates of N10 by Peta McGhee, and intelligence officer employed at Woodford. The photographs were made up by reference to an internal record called a nominal log which charts the whereabouts of each prisoner within the facility on a given day. The log refers to a unique photographic identification number which is assigned to each prisoner, to ensure that prisoners do not move around the facility at will.

1. It is common ground that the photographs shown to the complainant on the 5 July most likely did not include photos of five prisoners who had been in N10 on 2 July including the defendant. Officer McGhee explains that this is because by the 5 July, the missing photos were of people who were no longer in N10 on the 5 July. The defendant himself was transferred on the morning of the 5 July.

1. The complainant said that the person who assaulted him was not one of those in the photos.

1. The first difficulty for the Crown is that this process was not videoed; and that folder of photographs is missing and cannot be produced. It is most unfortunate, as by this stage police were involved, and it appears that McGhee undertook this procedure without reference to the police.

1. The following day, that is the 6^th July, another intelligence officer became involved. It had then been realised that the defendant’s photo was not amongst those shown to the complainant the day before. This officer, again apparently without any reference to the police, showed McKenzie a photo of the defendant whom he identified as the man who had assaulted him. Again, this process was not videotaped.

1. On the 12 September 2002, police undertook a proper photo identification procedure and the complainant identified the defendant.

1. The prosecution argument is that despite the acknowledged difficulties, nevertheless the evidence is sufficiently probative to enable it to be properly left to a jury, and any potential injustice can be overcome by the giving of appropriate judicial warnings.

1. As Mr Cummings submits, the attack occurred within a finite population of 34 prisoners. The complainant, as well as describing his attacker as ‘Chad’, gave a verbal description of him namely:

“short dark hair…a prickly face…not a beard, not totally clean shaven, just like black stubble…probably a bit shorter than me…couldn’t see any tattoos…a little bit stockier than me…”

1. For the purposes of argument, it can be assumed that out of the photos shown to him on the first occasion, only four fitted the description. However, of the four photographs of people who were there on the day of the assault, but not there on 5 July, two match that general description and one is a close match. The other difficulty for the prosecution is that in cross-examination at committal, the complainant accepted that the basis on which he knew his attackers name was ‘Chad’ is that he read his name on the photo card shown to him on the 6^th July.

1. The identification evidence is the only evidence in the prosecutions circumstantial case which is capable of implicating this defendant in the attack. For example, there are no independent eye-witnesses, or any forensic evidence that might assist.

1. The dangers of identification evidence, particularly of virtual strangers, are well recognised in the authorities. The dangers that arise here are obvious. Firstly, there is the inability of the defence to test the procedures adopted on the 5^th and 6^th July, because (a) neither procedure was videorecorded, and (b) the 5^th July folder of photographs is missing. Secondly, there is the obvious risk of what is called the displacement effect which arises because an individual photo of the defendant was shown to the complainant on 6^th July, thus potentially tainting his identification on 12^th September. In Pitkin v The Queen (1995) 130 ALR 35 at 39, the Court (Dean, Toohey and McHugh JJ) said:

“The use of photographs of suspects by law enforcement agencies for the purpose of identifying an offender is a necessary and justifiable step in the course of efficient criminal investigation. Nonetheless, it is attended by some danger of consequential and unfair prejudice to the accused. One such danger is that identification through a photograph is likely to be less reliable than direct personal identification since differences in appearance between the offender and the suspect may be less noticeable when a photograph of the subject is used.  In that regard, once there has been purported identification through a photograph, any subsequent direct identification may be less reliable by reason of the subconscious effect of the photograph upon the witness’ recollection of the actual appearance of the offender.”

1. In Festa v The Queen (2001) 208 CLR 593, the Chief Justice (at 602) by reference to Alexander v The Queen (1981) 145 CLR 395 noted that there are two principal dangers associated with identification from photographs:

“There is the inherent risk of error associated with suggestibility, and what is sometimes called the displacement effect. But there is also the risk of a different kind. The fact that the police have photographs of a suspect might convey to the jury the suspect is a person with a criminal history.”

1. In this case, the jury will have to know that he is, and a strong warning will be necessary. In Festa the Chief Justice tackled the somewhat difficult issue of the nature of the evidence in cases such as this; whether particular factors relate to the probative value of the evidence, and whether other circumstances give rise to unfair prejudice, which cannot be overcome by warnings.

1. In my view, the circumstances here lead me to one conclusion and that is that the identification evidence is so tainted as to be devoid of probative value, whereas before a jury it would be unfairly prejudicial and greatly so; in a way that could not be overcome by directions.

1. I rule that the evidence is therefore inadmissible.