R v BENFIELD - [2015] SADC 150

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BENFIELD
[2015] SADC 150
Reasons for Ruling of His Honour Judge Barrett
5 November 2015
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - NATURE OF DISCRETION - GENERALLY
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - PHOTOGRAPHS - GENERALLY
The accused is charged with recklessly causing harm by punching a man at a nightclub. The only evidence implicating the accused is photographic identification of him by the man's partner who identified him after being shown a Facebook photograph of him twice - first by her sister, who said she though the accused was the assailant, and second by a friend seven months later, a week before the photographic identification. The friend sought to focus the witness' attention of the forthcoming identification process. The witness did not unequivocally identify the accused in the process.
Held: The photographic identification should be excluded exercising the Christie discretion.
Strauss v Police (2013) 115 SASR 90; Britton v The Queen (1988) 51 SASR 567; R v Christie [1914] AC 545; Bunning v Cross (1978) 141 CLR 54; R v Lobban (2000) 77 SASR 24; Police v Hall (2006) 95 SASR 482; R v Crawford [2015] SASCFC 112; Police v Dunstall [2015] HCA 26; Alexander v The Queen (1981) 145 CLR 395; Pitkin v The Queen (1995) 69 ALJR 612; Rozenes v Beljajev [1995] 1 VR 533; Murdoch v The Queen (2007) 167 A Crim R 329; Festa v The Queen (2001) 208 CLR 593; R v Kostic and Stefanopoulos (2004) 151 A Crim R 10; [2004] SASC 406; Dupas v The Queen (2012) 40 VR 182; [2012] VSCA 328, considered.

R v BENFIELD
[2015] SADC 150

The accused has applied on the voir dire to have excluded from his trial evidence identifying him as the assailant who punched the victim, Mr Maitland, in the face at a nightclub, causing a broken jaw. The accused is charged with reckless causing serious harm.
The incident occurred at about 1 am in the Envy Nightclub which is part of the Bridgeway Hotel at Pooraka. Mr Maitland is 43. He was at the nightclub with a group of people which included his partner, Naomi Atkins, 32, and her younger sister, Kiara Fragomeli. The accused, aged 28, was seen by CCTV footage arriving at the nightclub with a group of men including one Shane Smith. A photographer engaged by the nightclub took photographs of patrons during the night. Those photographs included photographs of the accused and Smith. There are five photographs of Smith, two of which are photographs which include the accused. One of those two is a photograph of Smith, the accused and an unidentified male and female couple. The other is a photograph of the accused and Smith alone.
The assault arose in this way. During the evening Smith took Ms Fragomeli aside and started to “chat her up”. He put his details on Facebook on her mobile phone. Ms Atkins saw what Smith was doing and intervened to get Smith to leave her younger sister alone. Smith took offence at the intervention. He threw his glass in Atkins’ direction. The glass itself missed her but part of the contents splashed on to her. Maitland saw what Smith had done to his partner. He said “What the fuck”. Smith said “What the fuck did you say?” and started advancing on Maitland. Ms Atkins got between the two men to stop an assault by Smith. She called out to a waitress to call security. As this was happening, another man pushed past Ms Atkins. He said to Maitland “What the fuck did you say to my mate?” whereupon he punched Maitland in the face. Hotel security arrived and took Maitland, Atkins and Fragomeli to another room where Maitland was given an icepack to put on his face. Security personnel there told the three that Smith was an associate of the Rebels Outlaw Motorcycle Gang. In fact his Facebook photograph tends to confirm that. He is pictured wearing what appears to be Rebels Motorcycle Gang “colours” with three men, two of whose tee-shirts have Rebels written on the front.
Unaware of the extent of his injuries, Maitland told the security people that night that he did not want to report the matter to the police.
On Monday 13 January, Maitland saw his doctor because he was continuing to experience pain in his jaw. An x-ray revealed that his jaw was broken. On Thursday 16 January he underwent surgery to repair the break. He spent that night in hospital. Sometime after hearing of the broken jaw, Maitland decided to report the matter to the police. He went to the police on Wednesday 22 January. On that day, he, Ms Atkins and Ms Fragomeli gave witness statements to police.
History of identification
I trace the history of identification from the two witness statements of Maitland, the two witness statements of Fragomeli and the six witness statements of Atkins together with the evidence given on the voir dire by each of those witnesses and Senior Constable Golder, the officer from the Crime Gangs Task Force who was in charge of the investigation.
The history of the identification begins with Ms Fragomeli viewing on her mobile phone the Facebook entry made by Smith. She viewed that Facebook entry before she left the nightclub. She identified the photograph of Smith to the security people. It is likely that the identification of Smith also became known to Maitland and Atkins in this way before they left the nightclub. Smith had effectively identified himself. He had put his Facebook entry on Ms Fragomeli’s phone. Mr Maitland’s assailant had aligned himself with Smith by referring to Smith as his friend when he punched Maitland.
At some stage, probably during the morning of Saturday 11 January, some of the hotel photographer’s photographs were downloaded to the nightclub’s Facebook page. Whereas there are, as I have pointed out, five photographs of Smith taken by the photographer, only two of them appear to have been downloaded to the Envy Facebook. One appears on page 17 of the photographer’s sheet of photographs Exhibit VD-P5. It shows Smith with a taller, slimmer man. The other appears on page 18. It shows Smith with the accused. The accused is about the same height as Smith and of a similar stocky build. The accused has his arm around Smith.
At some stage before 22 January, the day on which the three witnesses gave their first statements to the police, Ms Fragomeli showed Atkins and Maitland the photograph of Smith and the accused from the Envy Facebook page. Ms Fragomeli believes she showed them the photograph on the afternoon or evening of Saturday 11 January. Ms Atkins thinks it was later in the week. Maitland too thinks it was later in the week.
Despite the different recollections about when the photograph viewing took place, the three witnesses are essentially in agreement about what actually took place. Ms Fragomeli had already shown Atkins and Maitland the “cover photo” of Smith from his Facebook page. That is the photograph of him with the three men wearing the motorcycle gang colours. On her own, Ms Fragomeli had located on the Envy Facebook page the two photographs which included Smith. She saved both to her own phone because she recognised the accused as Maitland’s assailant. She acknowledged that she was really looking for photographs of Smith because she wanted to see if those photographs also depicted the assailant. With good reason she thought that the assailant was a friend of Smith’s.
Later on (she thought the same day), Maitland and Atkins arrived at her house. She showed both of them together, the photograph of Smith and the accused. She had transferred the photographs from her phone to her computer. She showed them the photograph on the computer. As she did so she told them that she thought that the accused was the assailant. She said Atkins did not really want to look at the photographs and she left the room. She barely looked at it. Atkins said the same, although she acknowledged that she did see the photograph.
Ms Fragomeli said in her second statement of 7 March 2014, and confirmed in her evidence, that she would describe the group around Smith on the night as male, and they “all looked pretty buff”. She agreed that that description would fit the accused but would not fit the man with Smith in the other photograph she saw on the Envy Facebook page. That man was tall and thin.
In her statement taken on 22 January (but not signed until 7 March) Ms Fragomeli described the assailant as being 25 to 35, wearing a black top, short black hair. She said she recognised his photograph from the photographs downloaded by the photographer at the hotel, which she emailed to the police. She said that she could identify the assailant.
In her statement taken on 22 January (but not signed until 7 March) Ms Atkins described the assailant as about 180 centimetres tall, thin build, muscular, light coloured hair, short hair, wearing light grey tee-shirt. She could not recall the other clothing he was wearing. She said she would recognise him again.
Neither witness was shown a photographic identification array at that time. The police were in no position to conduct one at that early stage of the investigation.
Although the statements were taken from Maitland, Atkins and Fragomeli on 22 January and Ms Fragomeli had said she had recognised the accused from a photograph downloaded by the hotel photographer, none of the witnesses appears to have been cautioned at that stage not to look at Facebook or other photographs. In the event, it would appear that none of them did look at any more photographs before the caution was given. Senior Constable Golder says that he gave that caution to Maitland on 28 February, the day he signed his second statement, to Fragomeli on 7 March, the day she signed the statement she gave on 22 January and to Atkins on 24 April, the day she signed her statement of on 22 January. Each says that when they were cautioned they told the others about the caution.
While it might have been preferable for the police to caution all three witnesses not to look at Facebook or other photographs on 22 January, there is no evidence suggesting that any witness did so again before being cautioned.
The accused was arrested on 28 May. He declined to answer police questions and he declined to take part in a formal line-up.
Each of Maitland and Atkins agreed to take part in a photographic identification process on 18 July. On 23 July, Ms Fragomeli declined to do so. She declined when asked again on 5 March 2015. The prosecution will not be leading Ms Fragomeli’s Facebook identification. I will explain why shortly.
Maitland was unable to identify his assailant. He pointed to two photographs saying that the two people were “maybes” but he thought that that was because he had “seen him in the photographs of Envy”. Understandably the prosecution is unable to lead this evidence as evidence of identification.
The prosecution does however seek to lead the identification evidence of Ms Atkins. She did select a photograph of the accused when shown the array on 18 July. It is her evidence which the accused seeks to exclude.
I will turn to her evidence shortly but before I do that I refer to two further statements she gave to police between 22 January and 18 July.
The first of these was on 24 April. In that statement she gave more detail about her interaction with the assailant on the night. The first thing to note about that detail is that her opportunity to observe the assault itself was fleeting. She said this:
All of a sudden I saw someone walk past on my left hand side. I didn’t hear this person say anything. Almost straight away, I saw almost a flash of movement on my left hand side. I thought that someone had hit David. At the same time I heard a loud crack and then I saw someone move back away from my left and walk behind the male that threw the glass, who has started backing away.
I started to turn around and I heard Kiara screaming. I saw that David was standing behind me and he had blood on his lip and chin area. I looked back and saw the male that had walked away with David was hit. I assumed that it was this male that had hit David. I went to him and he just stood there. I got to him and I tried to punch him in the face with my right hand. I don’t even know if the punch connected. I don’t even know why I punched him. I just remember thinking that I needed to protect David so this male didn’t come back again.
Of further significance is Ms Atkins observation that she did not know if she would recognise the male again or not. In her first statement she said she would recognise him. In this statement she is less sure.
I pause to say something about Ms Atkins as a witness. In my view she was an excellent witness. In her statements and her evidence in court she demonstrated that she was careful, thoughtful and fair. In court she explained the change in her certainty of being able to recognise the assailant. She said that after the first statement she had become very conscious of the responsibility involved in identifying someone as an assailant. She was very concerned not to make a wrong identification. That care and concern is reflected in the way in which she made her photographic identification. The words alone do not capture her manner. The video of the interview does. She was careful throughout. I am left with the clearest impression that Ms Atkins is an honest witness and, more than that, a careful and thoughtful one.
Senior Constable Golder conducted the interviews with Ms Atkins on 24 April and 25 May. In the first he is exploring in more detail Ms Atkins account of the night and her exposure to Facebook and other photographs. In the second interview, which is a brief telephone interview, he is just exploring Ms Atkins’ exposure to other the photographs.
In the first of these statements, Ms Atkins says that her sister has shown her photographs on her phone of Smith. She says that her sister did not show her any photographs that were taken at the club on the night. If, by that she means, she saw no photographs of Smith from the night on the Envy Facebook, that is not correct. Ms Fragomeli had downloaded the two photographs of Smith, one with the accused, from the Envy Facebook to her own phone and then to her own computer. She then showed the computer image to Ms Atkins and Mr Maitland in the week following the assault, possibly even later the same day.
In that statement of 24 April Ms Atkins goes on to say that she herself searched the Envy Facebook from the night to make sure that there were no photographs of her group. She was afraid that any such photographs would expose them to danger. She said that in that process she herself saw “a couple of photographs of males that were in the group including Smith but nothing jumped out at me as the person who hit David”.
While it is understandable she may have been more concerned to find photographs of herself and her party, the fact is that if she saw any photograph which included Smith, it could only have been one of two. One was of Smith with the taller thinner man and the other was of Smith with the accused.
In her brief statement of 23 May (signed on 18 July) Ms Atkins said she could not remember if her sister had shown her any photographs of the male she, the sister, thought had assaulted Maitland. She acknowledges in her evidence that her sister had shown her a photograph of the man she, the sister, thought had assaulted Maitland.
Before I turn to Ms Atkins’ identification evidence on 18 July, I discuss a further occasion on which she saw a photograph of the accused. During the identification process she frankly disclosed that fact. Despite being warned by Golder on 24 April not to look at Facebook or other photographs, and despite hearing of Maitland and Fragomeli also being given such warnings, she did look at such photographs a week or so before 18 July. It appears that that viewing was no accident. She discloses during the interview on 18 July that she was again shown what must have included the Envy Facebook photographs of Smith and the accused. I reproduce the exchange that took place on that topic during the identification interview:
QWho showed you those?
AJust a friend of mine. He wanted to make sure that I was you know focussing on what I remembered and you know that we were making sure that I was focussing on who the right person was and telling me okay well have a look at these and if they jump out at you then, do they jog your memory as far as you know one hundred per cent or are they just confusing you more and if that’s the case then get off.
QYep. And what happened?
AI got off, got off of there because I was just in a stressed out state that it wasn’t helping, I was just getting more confused because I felt like I wanted to pick somebody for, you know for the sake of picking somebody not pick somebody because it’s the right person, and I don’t want to pick the wrong person and, just try and focus on what I remember.
QYep. Before you got off Facebook that day did you see a picture of the person that assaulted David that day?
AI wasn’t a hundred per cent.
QDo you think you did or?
AI didn’t want to get it stuck in my head on hundred per cent so I stopped looking under the thought process that whether they’re there or not I’m not sure, and I need to stop looking because it’s just making me more confused and stressed out.
QOkay.
AAnd yeah. They might have been, may not have been and yeah.
Regrettably Ms Atkins’ attention had been drawn to the critical photographs by a friend just before the identification process took place.
I now reproduce the relevant parts of the identification process itself. The parts I quote were preceded by the conventional and appropriate warnings given on such occasions. The photograph of the accused was number 5.
GolderI want you to look at the photographs and in your own time, tell me if you recognise any of the people shown as being involved in the incident I have mentioned. If you do, please point to the photograph and state the number of the photograph out loud. Do you understand that?
AtkinsYes.
GolderDo you have any questions before I hand you the folder?
AtkinsNo.
GolderI’ll get you to just cast your mind back to the event, and try and think about all the things that led up to you seeing the suspect. Take your time and carefully study all of the photographs, okay. Open then up at your leisure there.
AtkinsI don’t recognise him (points at photograph). The curly mouth doesn’t look familiar. That one is the only on that looks familiar (points at photograph 5) but I’m not, I don’t know. The rest of them don’t look at all familiar. Number five looks familiar. He looks pretty close to what I remember.
GolderWhat is it that makes you say that?
AtkinsThe long face. The lack of distinctive facial hair. There is a bit of stubble there but I don’t remember there being any full on facial hair or anything like that. Like this guy has got the chin hair and this one does too, but nothing, his nose isn’t huge, it’s not small, it’s not really all that prominent looking. He doesn’t have anything that jumps out about him like. This guy, this one here, I can, you know these two here definitely sort of say no, you know I would have noticed the ears or I would have noticed the larger noses. I would have noticed the curl in this guys mouth. So none of those at all look familiar. This guy looks too old. You know he looks, it doesn’t look right. This guy, he doesn’t look familiar at all. I don’t know, you know. I’ve been going between these two going, I don’t know. There’s just, something doesn’t quite look right about this guy that I would have possibly remembered the, I’m sure I would have remembered such a long skinny nose and being so pale looking I’m sure I would have, I would have remembered the eyebrow. You know he looks like some of the guys that were there, but not necessarily, I don’t think he was the one, I mean. Yeah like I said he looks like he could have been a friend that was there. But facial wise there’s, he looks about right. There is nothing that jumps out about him that I would you know straight off say like with these ones it is definitely not them. The other thing with these ones here in particular the face is too round. He had a longer shaped face.
GolderSo you’ve selected number five for the video camera?
LeakerJust with the video I’ll come and video the photo pack.
GolderWhat I’ll get you to do Naomi is just, I know you’ve indicated number five. I’ll get you to sign your name underneath, that photo and just put the date next to your signature as well so.
LeakerAnd just for identification of the pack this one is marked NA1.
GolderWhat I’ll do Naomi is just obviously you’ve selected a number of a photograph from the pack. Can I just clarify or confirm that the photograph that you’re looking at is the person that you believe to have hit David at the time and not a photo of a person that you’ve seen on Facebook after that incident?
AtkinsYeah I’ve been trying not to look at any photos on Facebook. I mean I have looked at a couple and I’ve just gone they look familiar but I can’t one hundred per cent say for sure whether those photos were of the person. He looks closest to what I remember.
GolderYep alright.
AtkinsThe attacker looking like from my memory.
GolderSo from the night not from Facebook when you say that?
AtkinsYeah. I’ve been trying not, like I’ve been deliberately blocking out what I’ve, anything that’s been shown to me from Facebook, to try and not cloud what I’m thinking because that’s the last thing I want. I don’t want somebody else getting in trouble for it and
GolderAnd just with that face, you said you had seen some photos on Facebook. When was that?
AtkinsBack in January I think and then I had somebody show me photos the other day and I sat there looking at them going I’m not a hundred per cent sure.
GolderSo the photos that you were shown in January were from, where were they from?
AtkinsFrom the night.
GolderFrom the?
AtkinsThe 10^th of January, the night.
GolderSo from the Envy?
AtkinsYeah.
GolderFacebook page?
AtkinsThe Envy website, yeah.
GolderAnd what about the photos that you were shown recently?
AtkinsThey were from the same.
GolderThe same?
AtkinsYeah.
GolderWho showed you those?
AtkinsJust a friend of mine. He wanted to make sure that I was you know focussing on what I remembered and you know that we were making sure that I was focussing on who the right person was and telling me okay well have a look at these and if they jump out at you then, do they jog your memory as far as you know one hundred per cent or are they just confusing you more and if that’s the case then get off.
GolderYep. And what happened?
AtkinsI got off, got off of there because I was just in a stressed out state that it wasn’t helping, I was just getting more confused because I felt like I wanted to pick somebody for, you know for the sake of picking somebody not pick somebody because it’s the right person, and I don’t want to pick the wrong person and, just try and focus on what I remember.
GolderYep. Before you got off Facebook that day did you see a picture of the person that assaulted David that day?
AtkinsI wasn’t a hundred per cent.
GolderDo you think you did or?
AtkinsI didn’t want to get it stuck in my head on hundred per cent so I stopped looking under the thought process that whether they’re there or not I’m not sure, and I need to stop looking because it’s just making me more confused and stressed out.
GolderOkay.
AtkinsAnd yeah. They might have been, may not have been and yeah.
GolderNo dramas. Is there anything else you want to add in relation to what you’ve just done?
AtkinsNo.
GolderIs there anything else further?
LeakerNo, I’ll just ask how many, when you looked at the Facebook page recently, how many photos do you think you looked at?
AtkinsThree maybe.
LeakerOkay. (emphasis added)

As can be seen the words of Ms Atkins used in the identification process do not amount to positive identification of the accused. However, Ms Atkins said in evidence that, now, the image of the accused has become more certain as that of the assailant. The question is how has that come to be?
Before turning to the discussion of the legal principles bearing on the identification evidence of Ms Atkins it is necessary to say something more about the evidence that is, and is not, proposed to be led by the prosecution.
The prosecution will not be leading identification evidence from Mr Maitland. That is understandable for the reasons I have already referred to. Mr Maitland cannot identify his assailant.
Nor will the prosecution be leading the Facebook identification of Ms Fragomeli. There are really several reasons for that. The first is that, while Ms Fragomeli says she still adheres to the identification she made of the accused from the Envy Facebook photographs in the day or days following the assault, she presently has no ability to recognise him.[1] In addition, the Facebook identification lacks the safeguards which are observed in properly executed formal identification procedures conducted by the police.[2] Ms Fragomeli looked at the Facebook photographs to see if she could locate Smith and any friends of his. She had good reason to think that the assailant was a friend of Smith’s. However there were only two photographs of Smith on the Facebook page – one with a man unlike the group of men around Smith on the night and the other of the accused who was like the men around Smith. Proper identification processes include as many as possible of people other than the suspect who fit the description of the assailant. In the Facebook page, there was only one man associated with Smith who fitted that description. It was the accused. Ms Fragomeli declined twice to take part in a photographic identification array which would have included other men fitting the descriptions of the assailant. While an identification of a suspect from a photographic array after a Facebook identification might have been criticised because of the possible displacement effect, ie the witness is really identifying the person they have seen in the photograph rather than the person they have seen on the night, the photographic array should still be conducted by the police so that there is an opportunity for the witness to choose someone else.[3] While the weight of any identification of the same person in the photographic array would be diminished by having seen the earlier photograph, the array should still be held. The police attempted to do that but Ms Fragomeli declined, twice, to take part.
[1]    T59-60.
[2]    See Peek J in Strauss v Police (2013) 115 SASR 90 at 103-4.
[3]    See King CJ in Britton v R (1988) 51 SASR 567 at 571.
For these reasons the prosecution will not be leading Ms Fragomeli’s Facebook identification.
That means that when the accused challenges the reliability of Ms Atkins’ identification, he is virtually forced to do so by disclosing to the jury that Ms Fragomeli had made the Facebook identification of him. She has then drawn the accused’s photograph to Ms Atkins’ attention telling her that she thought that the accused was the assailant. That is not the only way he could challenge Ms Atkins’ identification, but it is probably the most telling. He would embark upon that telling challenge at a considerable cost.
Discussion
There are three discretionary bases upon which otherwise admissible “real” or “non confessional” evidence may be excluded. The first is the Christie discretion.[4] That discretion is enlivened when the probative value of the evidence is outweighed by the risk of prejudice to the accused. The second is the Bunning & Cross discretion[5] where the evidence has been tainted by illegality or impropriety on the part of the law enforcement authorities. Public policy requires that the courts not give apparent approval to those whose job it is to enforce the law. There is no suggestion in this case of police illegality or impropriety. The police warned the identifier witnesses to not look again at Facebook photographs. The warning was perhaps not given as early it might have been but it appears to have been given before Ms Atkins did look again at the Facebook photographs. Despite all three witnesses having seen the initial Facebook photograph the police offered to conduct a proper photographic identification after the accused was arrested and after he declined to take part in a line up. The police conducted the photographic identification with the two witnesses who accepted the invitation. The photographic identification processes were carried out in an appropriate manner. The Bunning and Cross discretion does not arise in this case.
[4] [1914] AC 545.
[5] (1978) 141 CLR 54.
There is arguably a third basis for the discretionary exclusion. That is the “general unfairness” discretion. It was recognised in R v Lobban[6] and Police v Hall.[7]That discretion is enlivened when the reception of the evidence would be unfair in the sense that it would make the trial of the accused unfair. In R v Crawford[8] Gray J said:
This Court has favoured the view that the Christie discretion is an application of the general unfairness discretion.
[6] (2000) 77 SASR 24 per Martin J at [60]-[77], Doyle CJ and Bleby J agreeing.
[7] (2006) 95 SASR 482 per Doyle CJ at pp 488 and 491, Vanstone, Nyland, Bleby and Gray agreeing.
[8] [2015] SASCFC 112.
Recently the High Court in Police v Dunstall[9] declined to determine the scope of that residual discretion.[10] The plurality judges observed that where this discretion is enlivened, and the impugned evidence is critical to the prosecution case, it would be more appropriate to consider ordering a permanent stay of the proceedings rather than excluding the evidence.[11]
[9] (2015) HCA 26 delivered 5 August 2015.
[10] Police v Dunstall per the plurality judges, French CJ, Kiefel, Bell, Gageler and Keane JJ at [47].
[11] Police v Dunstall at [48].
The accused mounts his challenge to the admissibility of the identification evidence of Ms Atkins principally on the ground that the probative value of her evidence is outweighed by the risk of prejudice to the accused, ie the Christie discretion.
Ms Fuller for the accused submits that the probative value of the identification evidence is not high for a number of reasons. If the evidence is admitted the jury will have to be given clear warnings about the frailties of that evidence. The jury will have to be told of the limited opportunity that Ms Atkins had to observe the assailant in the first place. The incident was fleeting. The lighting was not ideal. She had had some ten drinks, although she may have been able to tolerate that consumption reasonably well.
I leave aside for the moment the consequences of the Facebook viewing in the day or days after the assault because that issue raises several problems.
The jury would have to be warned about the dangers of the displacement effect from the later Facebook viewing in the week or so before the identification array took place in July. In Alexander v The Queen[12] Stephen J described the displacement effect in these terms:
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.
[12] (1981) 145 CLR 395 at 409.
In this case the jury will have to be warned of that effect. The jury will have to be told that there is a possibility that instead of truly identifying the accused as the man she saw on the night, Ms Atkins has, perhaps unconsciously, identified the man she saw in the Facebook photograph a week before. She had not seen the assailant for seven months by the time she made the photographic identification but she had seen the Facebook photograph a week before.
The jury would also have to be told that, however honest and thoughtful Ms Atkins’ identification of the accused is, she has only been able to say in effect that the photograph of the accused “looks like the man” or is “the closest of the twelve to the man she saw on the night”. Those words fall short of positive identification. In Pitkin v The Queen[13] the identifying witness had said of the suspect’s photograph “This looks like the person that I seen (sic) take the lady’s handbag”. The High Court said of that evidence:
... Nonetheless, the plain fact remains that the words used by Ms Vella were consistent with an absence of positive identification. That being so, the evidence of her selection of three photographs was, of itself, incapable of sustaining a finding by a reasonable jury that the appellant was, in fact, the person who stole Ms Clarke’s handbag and was driven off in the stolen vehicle.[14]
[13] (1995) 69 ALJR 612.
[14] Pitkin v The Queen at 616.
That case is not authority for the proposition that the evidence should have been excluded. The High Court did say that the use of photographs of suspects may result in an unfair prejudice to an accused but the court found that the verdicts were unsafe and unsatisfactory, rather than that the trial judge should have excluded the evidence.
A conclusion by a judge that impugned evidence is of limited probative weight is not a ground for excluding that evidence. Essentially the weight of evidence is to be determined by the jury. In R v Lobban[15] Martin J referred to a discussion of this point by the Victorian Court of Criminal Appeal in Rozenes v Beljajev.[16] The court said:[17]
... it is difficult to see how it can be said that the trial is unfair by reason of the unreliability of evidence which is probative where the circumstances which make the evidence unreliable are properly exposed for the consideration of the jury ... there [is] no discretion to exclude evidence which was based wholly or primarily upon the trial judge's conclusion that the evidence was unreliable: the exercise of such a discretion interfered with one of the most integral of the jury's functions, a function which there was no reason to believe any properly instructed jury to be incapable of properly performing.
[15] (2000) 77 SASR 24 at [80].
[16] [1995] 1 VR 533.
[17] R v Lobban at 47.
Martin J said:[18]
The warning in Rozenes v Beljajev concerning the need to avoid usurping the function of the jury should be heeded.
[18] v Lobban at 48.
Nevertheless his Honour went on to speak of the general unfairness discretion.[19]
[19] R v Lobban at [82].
If the admission of the evidence would create a perceptible risk of a miscarriage of justice that cannot adequately be dealt with by appropriate directions to the jury, the proper exercise of the general unfairness discretion would require the exclusion of the evidence. In those circumstances the admission of the evidence would result in an unfair trial. His Honour went on to caution against underestimating the capacity of juries to appreciate and apply judicial directions.
The South Australia Court of Criminal Appeal has recently had to consider the difficulties associated with identification evidence where the identifying witness has had access to Facebook photographs before taking part in a photographic identification process.
In R v Crawford[20] the victim of an aggravated serious criminal trespass and assault was told by police the name of man whose palm print had been found at his house. Before the victim underwent a photographic identification procedure he accessed Facebook photographs using the accused’s name. He identified the accused as one of the three assailants who broke into his house. During the photographic identification process the victim chose a photograph of the accused with words that included:
I’m thinking number 10 ... but I’m not 100 per cent sure ... I’m going to say number 10 ... I’m thinking I’m going to say 10, but I don’t want to get anyone into trouble if it’s not.
[20] [2015] SASCFC 112 delivered 14 August 2015.
The trial judge admitted the Facebook and the photographic identification array evidence over objection by the defence and he gave directions to the jury about the identification evidence. By a majority[21] the Court of Criminal Appeal upheld the judge’s decision to admit the two sorts of identification evidence and held that the judge’s directions to the jury were appropriate. In dissent, Peek J held that a combination of the police impropriety in telling the victim the name of the suspect and the weakness of the identification evidence itself, including its being tainted by the Facebook viewing, called for the exclusion of the identification evidence under the three exclusory discretions, ie general unfairness, Christie and public policy discretions.
[21] Gray and Nicholson JJ.
Although Crawford is not a case in which the identification evidence was excluded, the discussions of the authorities are, with respect, instructive in this case. Before turning to those discussions I note the following differences of fact between that case and this. I think these differences are material ones. Those differences are:
In Crawford the identifier had not been warned by police against looking at Facebook or other sources. In this case the identifier had been warned.
In Crawford the identifier was told only the name of the suspect whose palm print had been located by the police at the scene. The identifier then made his own spontaneous identification of the accused on Facebook. That fact bears some similarity to the facts in Murdoch v R[22] where the identifier made a spontaneous identification of the accused having had her attention drawn to the article for an unrelated purpose. In this case the identifier’s attention was drawn specifically to the photograph of the accused by her sister who said she thought he was the assailant. The further Facebook viewing a week before the identification process was for the express purpose of focussing her attention on the accused’s photograph.
[22] (2007) 167 A Crim R 329, (NT Court of Criminal Appeal).
In Crawford the genesis of the police officer’s suspicion about the accused as the perpetrator was admissible evidence before the jury. The admission of the palm print caused no prejudice to the accused beyond its probative weight. In this case the identification by Ms Fragomeli will not be led by the prosecution for reasons that I have explained. If the accused chooses to challenge Ms Atkins’ identification by adducing Ms Fragomeli’s earlier identification of the accused, he does so at a considerable forensic cost.
In Crawford there was no other circumstantial evidence of the accused’s guilt. The identification evidence, whatever its frailties, was only one piece of circumstantial evidence implicating him. In this case Ms Atkins’ identification evidence is the only evidence of the accused’s guilt beyond his being present at the nightclub on the night and being an associate of Smith who was involved in the incident. There were however other similar looking associates of Smith present on the night.
I turn to a discussion of the issues by the members of the Court of Criminal Appeal in Crawford. Gray J referred to the three exclusory discretions. The appellant called in aid the general unfairness discretion. His Honour noted that the South Australia Court of Criminal Appeal has favoured the view that the Christie discretion is an application of the general unfairness discretion. In support of that proposition cited with Martin J, with whom Doyle CJ and Bleby J agreed, in Lobban.[23]
[23] R v Lobban at 49-50.
While acknowledging that the police action in disclosing the accused’s name, and inaction, in not warning against resort to Facebook etc, had the potential to cause some unfairness to the accused, that unfairness was not so great that it could not be overcome by appropriate directions to the jury. His Honour held that the directions given by the trial judge were appropriate and the jury’s ability to heed them should not be underestimated.[24] Gray J acknowledged that the value of the identification evidence was relatively low.[25]
[24] R v Crawford at [30].
[25] R v Crawford at [35].
Peek J, in dissent in the outcome, noted[26] the law’s long appreciation of the dangers of the displacement effect.[27] His Honour noted that the identification evidence fell short of positive identification.[28] In relation to the identifier saying that he was not 100 per cent sure, his Honour said:[29]
It is both unsafe, and unfair to the appellant, to require a jury to attempt to answer a baffling question: What lesser percentage of “sureness” might Earley have had on the occasion of the photographic array procedure but for the contaminating effects of both the police telephone call of 16 November 2013 and Earley’s Facebook search that were already built into Earley’s estimate of “about 60 to 70 per cent sure”?
[26] R v Crawford at [88]-[90].
[27] See Alexander, Pitkin and Strauss.
[28] R v Crawford at [91]-[94].
[29] R v Crawford at [95].
While that I appreciate that Ms Atkins did not give identification of the sort there referred to by Peek J, his Honour recognised the unfairness to the accused of the jury being confronted with a baffling question. The baffling questions for the jury in this case might be these:
·How much of Ms Atkins identification relies in truth upon her seeing the accused’s photograph twice, once with her sister shortly after the event and again shortly before the identification procedure seven months later?
·(If the defence leads the Fragomeli identification) how do we ignore the fact that Ms Fragomeli has herself made an identification?
Peek J’s dissenting conclusion was that the slight probative weight of the Facebook and photograph identifications was greatly outweighed by the unfair prejudicial effect on the trial of the accused.
Nicholson J agreed with Peek J that the identification evidence was slight. In acknowledging the exclusory Christie discretion his Honour emphasised the words of Gibbs CJ in Alexander:[30]
It would be right to exercise that discretion in any case in which the judge was of opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused. (emphasis added)
[30] (1981) 145 CLR 395 at 402-3.
Citing authority, his Honour observed that:
An out of court identification, including that arrived at after an inspection of photographs, is admissible evidence.[31] I add here that an out of court identification based on Facebook photographs will fall within this general proposition. The nature and circumstances of any such out of court identification, ordinarily, are relevant to the weight rather than the admissibility of the evidence.[32] Even weak identification evidence is admissible; where evidence, including identification type evidence, has some probative value even if slight or weak, it ordinarily is to be left to the jury for it to weigh in the context of the Crown case as a whole and with the assistance of appropriate directions.[33]
[31] See generally Alexander v The Queen (1981) 145 CLR 395 at 400; R v Deering (1986) 43 SASR 252 at 253.
[32] Alexander v The Queen (1981) 145 CLR 395 at 399.
[33] Festa v The Queen (2001) 208 CLR 593 at [14], [21]-[23]; R v Kostic and Stefanopoulos (2004) 151 A Crim R 10; [2004] SASC 406 at [24]-[27].
That said, if, in the face of slight probative weight, there is prejudice to the accused which cannot be overcome by strong directions, the exclusory discretion may be exercised. Nicholson J cited in that regard the decision of Dupas v R:[34]
However, the need was expressed and whatever the category of the evidence to which it applied, where the unfair prejudice was asserted to be the danger that the jury would attach undue weight to the impugned evidence, an evaluation of the weight of the probative evidence necessarily involved an assessment of the quality (and any inherent frailty) of that evidence. That is, the trial judge was required to form an opinion about the weight that a jury could reasonably assign to the evidence. Part of that task was to evaluate the quality, reliability and weight of the evidence. These terms have generally been treated as interchangeable in the present context.
Once an evaluation was made of the weight the jury might reasonably attach to the evidence, some assessment was then required of the nature and degree of the risk that the evidence might be misused for an improper purpose, or given undue weight. The likelihood of the risk eventuating, and its nature, would be balanced by the judge’s view of the extent to which directions would ameliorate that risk. Once those matters had been assessed by the trial judge, the balancing exercise could be undertaken to determine whether the risk of prejudice was outweighed by the probative value of the evidence. Thus, where the probative value was significant and there was a low risk of the jury giving it greater weight than was warranted, or of it being used in an illegitimate way, the trial judge would not exclude the evidence. Conversely, if because of its unreliability the evidence had low probative value, yet there was a real risk that the jury would attach more weight to it than it deserved, and that risk could not be overcome by strong directions from the trial judge, the evidence would be excluded. Once the evidence had been admitted before the jury, however, and subject to the trial judge’s power to withdraw that evidence from their consideration later in the trial, questions of credibility, reliability and weight were peculiarly the province of the jury.
[34] (2012) 40 VR 182, [2012] VSCA 328 at [141]-[142].

His Honour concluded that although the identification process that took place caused a degree of unfairness to the accused, the trial itself was not rendered unfair because the trial judge’s directions could, and in the event did, overcome that unfairness.[35]
[35] [159]-[163].
Conclusion
I have reached the conclusion I should exclude the identification evidence of Ms Atkins exercising the Christie discretion. I do so because, despite the honesty and care demonstrated by Ms Atkins in her identification of the accused, the probative weight of her evidence is outweighed by the prejudicial effect. I go so far as to apply the words of Gibbs CJ in Alexander. The gravely prejudicial effect to the accused outweighs the little probative weight. I do so for these reasons:
Ms Atkins’ opportunity to observe the accused on the night was slight. It was extremely quick, in imperfect lighting and in the context of a traumatic event.
However honest and careful, Ms Atkins identification evidence falls short of positive identification.
It is effectively impossible for Ms Atkins to avoid the displacement effect.
The displacement effect arises from, not one, but two earlier viewings of the accused’s photograph.
The first viewing was at her sister’s house in the day or days following the assault. Although she had the most fleeting view of the accused’s photograph on that occasion, it was a view that she had in the context of her sister saying that she thought it was the accused who assaulted Mr Maitland. The photograph was of the accused with his arm around Smith whom Ms Atkins was able to positively identify as the man who had started the whole incident. She had had a reasonable opportunity to observe Smith on the night.
Despite being warned by the police not to do so, Ms Atkins looked again at the accused’s photograph on Facebook a week before the photographic identification. She did so for the express purpose of focussing her attention on the forthcoming photographic identification process.
If the accused makes the, in the circumstances unfairly costly, decision to mount a challenge before the jury Ms Atkins’ identification by disclosing Ms Fragomeli’s identification to her, no judicial direction could be crafted to overcome the prejudice. The jury would be unable in my view to overcome the difficulties.
If the accused chose not to disclose Ms Fragomeli’s identification, he would be unreasonably weakening his challenge to Ms Atkins’ later identification.
Ms Atkins’ identification evidence is the only evidence implicating the accused.
I rule that Ms Atkins’ identification evidence be excluded.