R v Blair and Kipa
[2004] SADC 112
•17 August 2004
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BLAIR AND KIPA
Reasons for Ruling of His Honour Judge Bishop
17 August 2004
CRIMINAL LAW - EVIDENCE
Accused jointly charged with having committed five offences - one accused (Blair) made application to exclude evidence obtained by telephone interception purportedly authorised pursuant to the Telecommunications (Interception) Act 1979 (Cth), s45, in respect of a class 1 offence - whether ‘unlawful imprisonment’ is an offence known to law and, if so, whether it is “an offence of a kind equivalent to kidnapping” within the meaning of “class 1 offence” as defined in s5(1) of the Act - warrant held valid and telephone interception evidence admitted.
Telecommunications (Interception) Act 1979 ; Kidnapping Act 1960 , referred to.
Flanagan & Ors v The Commissioner of The Australian Federal Police & Ors (1996) 134 ALR 495; R v D [1984] AC 778; Bird v Jones (1845) 7 QB 742 (115 ER 668); R v Garrett (1988) 50 SASR 392; Grinham v Woolworths Ltd (1992) 164 LSJS 303; Lawrence v NSW Police Service & Anor (reasons delivered 16 February 2004); Ousley v The Queen (1997) 192 CLR 69; Rahman (1985) 81 Cr App R 349; Welland (1978) 67 Cr App R 364; R v Nguyen (1998) 4 VR 394; Twistleton (1668) 1 Sid 387, considered.
CRIMINAL LAW - EVIDENCE
Other accused (Kipa) made application to exclude evidence of photographic identification by the alleged victim upon grounds which included that Kipa was the only Maori in the photographic array and the identification process was unfair to him - proposed evidence admitted - whether evidence of dock identification should be permitted by witnesses who had (not) recognised Kipa in the photographic identification process - proposed evidence of victim admitted.
Summary Offences Act 1953 , referred to.
Alexander v The Queen (1981) 145 CLR 395; R v Bunting & Wagner (No. 6) (2003) 231 LSJS 44; R v Dixon & Henry Judgment No. S5924 (delivered 11 December 1996); R v Shannon & Shannon (1987) 136 LSJS 165; R v Britten (1988) 51 SASR 567; Clark & Ors (1996) 91 A Crim R 46, considered.
R v BLAIR AND KIPA
[2004] SADC 112Judge Bishop
Criminal
Upon their arraignment for having jointly committed five offences on 2 November 2001 at Adelaide and other places, namely, false imprisonment of Peter Sadler (“Sadler”), demanding money of Sadler with threats and three offences of robbery of Sadler together with other persons, the accused, Peter William Blair (“Blair”) and Dean Ronald Kipa (“Kipa”), pleaded not guilty and made separate applications for the exclusion of evidence proposed to be adduced for the Crown. The hearing of those applications occupied five days. I shall separately consider each of those applications.
Application of Blair
For Blair, Mr Edwardson sought to exclude evidence of intercepted telephone conversations between Blair and Sadler upon the ground that:
“The warrant authorising the interceptions issued pursuant to the Telecommunications (Interception) Act 1979 [“the Act”] was issued in respect of the investigation of an offence not known to law. Alternatively, the offence was not a “class 1” offence. The warrant was accordingly defective and the evidence obtained pursuant to its use ought to be excluded.”
The warrant in question (exhibit VD D1.2) was issued by O’Loughlin J. of the Federal Court on 5 November 2001, purportedly pursuant to s45 of the Act in relation to a “class 1” offence as defined in the Act, upon the application of the South Australian Police, the particular person of interest being Blair. In the warrant, O’Loughlin J. stated, inter alia, that he was satisfied, on the basis of the information given to him by the applicant, that,
“(c)information that would be likely to be obtained by intercepting, under a warrant, communications made to or from the particular telecommunications service, would be likely to assist in connection with the investigation by the agency [the applicant] of the following class 1 offence, in which the person [Blair] is involved:
namely an offence of a kind equivalent to kidnapping, being that of unlawful imprisonment, an offence of Common Law and punishable at large.”
Relevantly for present purposes, in s5(1) of the Act, “class 1 offence” is defined as meaning,
“(b) a kidnapping, or an offence of a kind equivalent to kidnapping”,
and s49(7) provides that,
“A warrant shall set out short particulars of each serious offence in relation to which the Judge … issuing the warrant was satisfied, on the application for the warrant, as mentioned in: … paragraph [sic; it should be section] 45(d) … as the case requires.”
Of that requirement, in Flanagan & Others v The Commissioner of the Australian Federal Police & Others (1996) 134 ALR 495, the Full Court of the Federal Court expressed the view (with my emphasis) that,
§“it appears to us that what is required by 49(7) is a statement of particulars which identify the alleged or suspected offences in a conceptual sense, in contrast to particulars of the essential factual ingredients of those offences in the particular case, such as those which an accused is entitled to have to enable him to prepare his defence” (at 537); that
§“A requirement of conceptual identification of the suggested offence or offences is distinct from and falls far short of a requirement that the eligible judge set out in the TI warrant the essential factual ingredients of each offence” (at 539); that
§“the use in this context of the word “namely” is significant. It serves to indicate a requirement that the offence be identified; and that this process of identification be carried out by the provision of short details of the offence in which the person is said to be involved in the requisite sense, sufficient to identify it in conceptual terms rather than provide “particulars” of material facts. By using the adjective “short”, something different from such ordinary particulars, something special, is indicated” (at 540); and that
§“there is every reason to suppose that the expression “short particulars of each … offence” in relation to which the judge is satisfied as mentioned in s46(1)(d) [in relation to class 2 offences], signifies only sufficient conceptual identification to enable a reader of the TI warrant to perceive whether the offence is of the kind included in the definition of “class 2 offences” in s5” (at 541).
In Flanagan’s case (supra), the court held (at 541) that the identification of offences in a TI warrant as,
“namely conspiracy to defraud the Commonwealth contrary to s86(1)(e) and now s86A of the Crimes Act 1914; and defrauding the Commonwealth contrary to s29D of the Crimes Act 1914”
was sufficient to satisfy the statutory requirements of s49(7) in that the warrant did identify two “class 2” offences and did so in conceptual terms which were adequate.
The first question which here arises is whether the warrant was issued in respect of the investigation of an offence known to law; that is to say, is unlawful imprisonment an offence at common law. (No suggestion was made that there exists a statutory offence of that description.) As Richard Du Cann Q.C. remarked before the House of Lords when making submissions for the Crown in R v D [1984] AC 778, at 793,
“In the developing process of the common law it is to be expected that the definition of offences will proceed erratically and will be identified by different text book writers at different times.”
In Blackstone’s Commentaries, 3rd edition (1862), vol. 3, at page 136, for example, it is stated that unlawful or false imprisonment consists in confinement or detention of the person without sufficient authority.
Invariably, however, the description now given to the common law offence is “false imprisonment”, not “unlawful imprisonment”. But that is not to overlook the fact that “false” is a somewhat misleading term. “False” does not here necessarily signify “mendacious” or “fallacious”, but is used in the less common sense of “erroneous” or “wrong” (see Salmon and Heuston on the Law of Torts, 20th edition (1992), page 128, note 51, cited by Winfield and Jolowicz on Tort, 14th edition (1994), page 63). As Smith and Hogan stated in Criminal Law, first edition (1965), at page 278, “The imprisonment must be “false”, that is, unlawful.” Every unlawful restraint on the liberty of a person, by confining her or him in custody is a false imprisonment and a common law crime (Brett, Waller and Williams, Criminal Law, 6th edition (1989), para 3.41). In Russell on Crime, 12th edition (1964), vol. 1, at page 690, false imprisonment is described as unlawful and total restraint of the personal liberty of another person.
The reported cases support those statements. In Bird v Jones (1845) 7 QB 742 (115 ER 668), Patteson J agreed (at 754; 672) with the definition in Selwyn’s Nisi Prius, title Imprisonment, that false imprisonment is a restraint on the liberty of the person without lawful cause and agreed with Buller’s Nisi Prius (page 22) that every restraint of a man’s liberty without a proper authority is false imprisonment. More recently, in the Court of Criminal Appeal case of R v Garrett (1988) 50 SASR 392, at 405, von Doussa J. described the offence of false imprisonment as the intentional and unlawful total restraint of the liberty of another person against his will. (See also, Mullighan J. in Grinham v Woolworths Ltd (1992) 164 LSJS 303, at 307, upon the tort of false imprisonment.) Particulars of that offence, as described in Archbold, Criminal Proceedings, Evidence and Practice (2000), are that the accused unlawfully and injuriously imprisoned another person and detained her against her will. In this information, the particulars stated are that both accused unlawfully imprisoned Sadler and detained him for about two hours against his will.
Upon considering the helpful submissions of both counsel, in my view the description in this warrant of “unlawful imprisonment, an offence at common law” is descriptive of an offence known to law, an offence now more commonly referred to as false imprisonment. In my view, unlawful imprisonment is an offence at common law and is synonymous with the offence more commonly described as “false imprisonment”.
Section 49(7) of the Act requires that the warrant shall set out short particulars of the alleged or suspected specifically identifiable offence known to law. James J. observed in Lawrence v NSW Police Service & Another (reasons for decision delivered on 16 February 2004) that general statements made by justices of the High Court in Ousley v The Queen (1997) 192 CLR 69 support the proposition that,
“there needs to be a particular enough description of the offence, whether embodying the words or section numbers used in an Act, or some precise factual description as will provide an ability to relate the factual material to some identifiable offence as is known to the law, to the extent contemplated by the applicable Act”.
In my view, this warrant does contain sufficient description, in a conceptual sense (Flanagan’s case, supra), to enable a reader to identify an offence known to law, to the extent contemplated by the Act.
The second question which here arises is whether the offence described in the warrant as “unlawful imprisonment” is “an offence of a kind equivalent to kidnapping”, as required for a “class 1 offence” as defined in s5(1)(b) of the Act. Kidnapping is, and has been since the 17th century and earlier, a common law offence under English law (see Lord Brandon in R v D [1984] AC 778, at 797). Kidnapping is often described as an aggravated form of false imprisonment (see, for example, Napier, “Detention Offences at Common Law” in “Reshaping the Criminal Law” (1978), at page 194). “False imprisonment consists in the unlawful and intentional or reckless restraint of a victim’s freedom of movement from a particular place. In other words, it is unlawful detention which stops the victim moving away as he would wish to move” (Rahman (1985) 81 Cr App R 349, at 353). For the offence of kidnapping to be established, the false imprisonment or deprivation of liberty must be proved, coupled with a carrying away from the place where the victim wants to be (see Welland (1978) 67 Cr App R 364, at 367). As Lord Brandon stated in R v D (supra, at 800), the offence of kidnapping contains four ingredients:
“(1) the taking or carrying away of one person by another; (2) by force or fraud; (3) without the consent of the person so taken or carried away; and (4) without lawful excuse.”
Kidnapping, like false imprisonment and other public disturbances of the King’s Peace, is a misdemeanour and punishable by fine and imprisonment, at large.
In South Australia, in addition to the common law offence of kidnapping there exists the statutory offence of kidnapping which was enacted by s2(1) of the Kidnapping Act, 1960. That statute did not abolish the common law offence (see R v Nguyen [1998] 4 VR 394, at 411). The statutory offence differs from the common law offence in that it relates to kidnapping for gain. Relevantly for present purposes, s2(1) provides (with my emphasis),
“Any person who, whether for ransom, reward, service or for any similar purpose, unlawfully … detains any person without his consent or with his consent obtained by fraud or duress to the intent or whereby such person … is … imprisoned … shall be guilty of felony and liable to be imprisoned for life.”
The differences between the common law and statutory offences of kidnapping are the purpose of gain (which exists in the statutory offence) and the fact that the statutory offence is a felony, not a misdemeanour. In theory, the penalties for both offences are virtually the same or to the same effect and, in that sense, may be regarded as equivalent.
Notwithstanding the differences between the common law offences of false (or unlawful) imprisonment and kidnapping (in that kidnapping contains the additional element of carrying away) and the differences between the common law offence of false (or unlawful) imprisonment and the statutory offence of kidnapping (to which differences reference has been made), in my view the common law offence of false (or unlawful) imprisonment can properly be described as “an offence of a kind equivalent to kidnapping” both at common law and as statutorily enacted. Those offences (together, perhaps, with abduction: see Twistleton (1668) 1 Sid. 387) are offences relating to the unlawful detention of other persons for which the penalties are at large. They are also offences which are usually considered together (see, for example, Archbold (2000), supra, at pages 1717 to 1719; Russell on Crime, supra, vol. 1, chapter 38; and Napier, supra). To my mind, those offences are virtually equivalent or identical in significance, function and effect.
For these reasons, in my view, the warrant was not defective and the evidence obtained pursuant to it was admissible and should here be admitted. I so ruled.
Application of Kipa
For Kipa, Mr Stretton sought to exclude photographic identification evidence of him (on grounds that shall be considered) and any “in court” identification.
Upon the statement (dated 4 November 2001) of Sadler, about 9.30 am on Friday 2 November 2001, after parking his car in the underground car park of the building where he worked in Flinders Street, Adelaide, he was grabbed first by a man whom he “realised” was a Maori and then by two other men. He was pushed into a van, which was moving out of the car park, and a man placed a blanket over his head. After being driver to Mount Lofty Summit car park, the blanket was removed and Sadler recognised a man sitting in front of him as Blair, who was known to him. As they drove through the Adelaide Hills, Sadler handed $90 to one of the men. There was also conversation, mainly by the driver, about how Sadler had let Blair down and cost him a lot of money (about $60,000) which, Sadler said, he would pay him, if given until the end of the following week. Sadler was then driven back to his office car park about 11.50 am. From his car, he obtained the registration papers to that vehicle and gave them to one of the men, before getting back into the van. Another of the men drove Sadler’s car from the car park. After Blair had selected a café in Rundle Street, Sadler was again driven to his office, let out of the van and given until 1.30 pm to get $500 and return to the café. Upon returning to the café, Sadler handed $500 to Blair and, at the request of the man who had driven the van, signed the registration papers of his car. Blair told Sadler that he would contact him during the following week. Later that day (beginning at 5.43 pm and concluding at 10.00 pm), Detective Carr (“Carr”) obtained from Sadler a comprehensive 20 page handwritten statement (“the handwritten statement”) telling what had happened. Later that night, Carr dictated the handwritten statement to a typist who, in 18 pages, typed Sadler’s first type-written statement (“the type-written statement”) which he signed on Sunday 4 November 2001.
In the handwritten statement, Sadler gave descriptions of his captors who, he said, were Blair and four Maori men. His description of the van driver (who is here alleged to have been Kipa) was:
“Maori in his 30’s, 183cm big muscular build, 100kg, black hair shaven stuble [sic] only no facial hair very solid jaw, sunglasses platinum frame … well spoken with a mild NZ accent”.
Of his five captors, Sadler there described three of them (including Blair) as having been wearing sunglasses. Inexplicably, those sunglasses were omitted from the type-written statement soon afterwards dictated by Carr. (An earlier description, in the handwritten statement, of Blair having worn sunglasses was included in the type-written statement.)
On Friday 9 November 2001, police officers arrested Blair and Kipa as they were being driven in a taxi cab from Adelaide Airport towards Adelaide. They were charged with these five offences and photographed, pursuant to s81(4) of the Summary Offences Act 1953, for the purpose of identifying them as persons who had committed these offences. (Because Kipa’s eyes were closed when photographed, later he was again photographed.) Upon both of the accused subsequently declining to participate in identification parades, Carr arranged for photographic identification procedures to be conducted.
On Monday 12 November 2001, Mr Flitton (“Flitton”) of the Visual Identification Section of the Police Department created two photo packs (with 16 photographs in each pack) one for each of Blair and Kipa, using for those purposes the photographs (the second photograph of Kipa) which had been taken after their arrest. Flitton told Carr that he had difficulty in selecting suitable photographs of Maori/Islander males comparable to Kipa. (When arrested and photographed, Kipa had short black head hair, a goatee beard, moustache and facial stubble.) He explained, in evidence, that he used Kipa’s physical appearance as criteria for choosing other photographs from the department’s library of photographs: “What I try and do is match the other photographs in the photo ID pack as much as possible to the suspect’s photograph” (T243). Kipa had there been classified as “Maori or Islander”. On the database, there were 130 such persons, only two of whom had goatee beards and crew-cut hair styles. He ignored ethnicity (apart from excluding Caucasians) and focussed on Kipa’s photographic appearance (T250). From 30 suitable images, he chose 16 for the photo pack. While Flitton accepted, in cross-examination, that ethnicity is generally important “for the obvious photos” (T267), he did not consider that Kipa’s photograph was of a person obviously of Maori descent, as distinct from Aboriginal or Islander (T267). From the photo pack created for Kipa, Carr selected 11 photographs of men whom he considered were “the most like” Kipa (T185), in an endeavour to ensure that those men “were all of similar description and appearance” (T187). In excluding the other four photographs, his main criteria were “length of hair, goatee beard and the shape of the face” (T187).
On Tuesday 13 November 2001, in a photographic identification process conducted by Carr, from a folder (exhibit VD D2.4) containing 12 photographs Sadler identified Kipa as being a person involved in these offences. (He separately identified Blair as also being involved.)
The grounds upon which (with my re-numbering and emphasis) the photograph identification evidence of Sadler was sought to be excluded were that:
1.The composition of the folder (exhibit VD D2.4) and the conduct of the identification process were inappropriate and such as to suggest to Sadler that Kipa be selected, in that:
(1)Kipa did not match the detailed description which Sadler gave to the police of any of his alleged abductors, except in so far as he was a Maori;
(2)Kipa was the sole Maori depicted in the folder and no other persons of Maori or Islander appearance were included;
(3)no-one who accorded with Sadler’s description of his alleged abductors was included;
(4)Sadler was accordingly confronted with a folder containing no-one who matched the descriptions that he had given to the police, with the exception of Kipa in that Kipa was the sole Maori depicted;
(5)Carr informed Sadler before conducting the photographic identification process that the police had arrested a Maori whom Carr would ask Sadler to identify and who would be in the folder that Carr gave him; Kipa was the only Maori depicted in that folder;
(6)during the actual photographic identification, Carr appeared to point out Kipa with his biro;
(7)the composition of the folder and the conduct of the identification process were unfair to Kipa in that the folder presented him as the only Maori in circumstances where Sadler knew that the police had arrested a Maori who would be in the folder and whom Carr then pointed out to Sadler; and
(8)Carr consistently omitted from the type-written statement of Sadler the fact that the persons whom Sadler was describing were wearing sunglasses, thereby attempting to represent that the descriptions were more reliable and any consequential identifications less doubtful.
2.Even though Kipa did not match any of the descriptions given by Sadler, Sadler picked him out, albeit in equivocal terms.
3.Carr acted in breach of the South Australian Police General Duties Manual (exhibit VD P6) in that, “When considering an informal or photographic identification, fairness to the suspect is a critical factor. [The officer] should do all things reasonably practicable to ensure the procedure adopted satisfies the court of the fairness of [the] identification.”
4.Section 81(4) of the Summary Offences Act 1953 does not authorise a “second photo process” and, therefore, the photograph of Kipa used for the identification process was unlawfully obtained.
In Mr Stretton’s most helpful written submissions, “the combination of all the foregoing factors are sufficient to establish that the admission of such an identification would be very unfair to the applicant, that its probative weight is far outweighed by the prejudicial effect it would have, and further and in the alternative on the basis that the police conduct in relation to the identification was unfair and inappropriate in the ways identified.”
In advancing his main proposition, Mr Stretton submitted (in para. 38 of his written submissions) that, “All the evidence establishes that, so far as lay witnesses, police witnesses and Mr Flitton were concerned, Mr Kipa was distinctively a Maori [and] it is inherent in the expression of such views that these witnesses are unanimously of the view that Maoris have a distinctive appearance.” His submission continued (in para. 39), “But of crucial importance was the fact that [Sadler] could recognise and distinguish Maoris from others. In such circumstances if only one Maori was presented to that witness it would obviously distinguish that Maori from all other non Maoris in the photo pack, and suggest who to pick.”
Despite those submissions, ethnicity, whether common or obvious, is not a recognised qualification as to the proper basis for selecting participants or photographs in an identification parade. In Alexander v The Queen (1981) 145 CLR 395, Gibbs CJ appears (at 398) to have proceeded on the basis that such a parade should be conducted “from a sufficient number of more or less similar persons”. The procedure of placing a suspect’s photograph in an array with photographs of other persons bearing a sufficient resemblance to him has been accepted for many years as the fairest procedure. As Martin J said in R v Bunting & Wagner (No.6) (2003) 231 LSJS 44, at 49,
“In my opinion the difficulty facing the submission is the flaw in the underlying contention that in order for the parade to be fair, those engaged in it should fit the descriptions given by the witnesses. As I have indicated, the prevailing view in South Australia and, as far as I am aware, in the remainder of the country, is that fairness is best achieved by ensuring that those participating are of a similar build and appearance to the accused.” (My emphasis.)
Whatever might have been the ethnic origins of those other men in the photographs contained in the folder, as Duggan J observed for the Court of Criminal Appeal in R v Dixon & Henry (judgment no. S5924, delivered on 11 December 1996 – where both of the accused were Maoris), “the important question is whether there is unfairness in the selection such that prominence is given to the photographs of the suspects”. Having studied these photographs, in my view there was no unfairness of the type suggested. Significantly, perhaps, in that regard, at least three of the persons who were shown the folder were unable to identify Kipa as being one of a group of Maori men whom they had seen in Adelaide around the time when these offences were committed. Although Kipa might not have matched the detailed description which Sadler gave to the police, he was not arrested until nine days later and, within that time, some details of that description could have changed.
When conducting the photographic identification procedure with Sadler on 13 November 2001 in relation to Kipa, Carr said to Sadler (see transcript of record of interview, exhibit VD D2.6; my emphasis), following the words of the pro-forma document,
“I understand that you may be able to identify the persons connected with the matter. I am about to hand you a folder which contains a number of photographs of male persons. The photographs are numbered and I ask you to look closely at all the photographs to determine if you are able to positively identify any of the persons shown. Prior to handing you the folder there are a number of important points which you are asked to be aware of. Firstly, the photograph of the person involved in the incident, under the investigation, may or may not be in the folder, do you understand that? [Answer, “Yes”.] Viewing the photographs contained in this folder does not mean that you are obliged to make a selection, do you understand that? [Answer, “Yes”.] Neither I nor any other persons are able to assist you in any way to make your selection … I 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.”
In cross-examination, Carr confirmed his awareness that it was inappropriate to suggest to a person with whom he was conducting an identification process that the suspect might be in the folder (T225). He continued (T225), “Whether the person who is attempting to make the identification believes that the person is in the folder or not, I couldn’t say.” He also agreed (T225 - 226) that it would be inappropriate, immediately before reading the pro-forma, to tell Sadler that he had a Maori in custody who was going to be in the folder. ‘At some point’ he did tell Sadler that a Maori had been arrested, so as to allay Sadler’s fears for his safety and that of his family.
The cross-examination of Carr continued (T226 - 228; my emphasis):
“Q.But I take it you told Mr Sadler that you had arrested a Maori and you were going to have an identification process in relation to that person you had arrested.
A.Yes, he was aware that he would have to attend to identify the person arrested … I know that Detective Brumpton and I went and visited Mr Sadler on the afternoon of the 9th and told him that people had been arrested …
Q.So he had four days for it to sink in that he was going to be asked to identify the Maori that you had arrested, didn’t he.
A.Yes.”
As Mr Henchliffe remarked when belatedly objecting to that last question, Sadler was not subsequently asked to identify the Maori who had been arrested, rather he was asked whether he was able positively to identify any of the persons shown in the folder as being involved in the incident in question.
In a sense, the first above-quoted question was misleading of the witness in referring to an identification process “in relation to that person you had arrested”, when the identification process was referable to any of the persons involved in the incident. Carr clarified his position in the following answer (at T227; my emphasis),
“The purpose of conducting the identification parade was to identify the person that was involved in the offence on the 2nd. Mr Sadler was aware that there would have been a photograph of Mr Blair somewhere in those identification packs because we had told him we had arrested Mr Blair, so the other person that he would have been trying to identify was a person that he perceives as being a Maori [that he knew we had arrested].”
This aspect of the cross-examination concluded with the following exchange (at T228; my emphasis),
“Q.So he would have been aware that it was more likely than not that the suspect would have been in that second folder, wouldn’t he.
A.Yes.”
Strictly speaking, of what Sadler was aware, in that regard, was not evidence that Carr could give. What was important was that Carr not have told Sadler that a photograph of a person involved in the incident was contained in the folder. I am satisfied that Carr did not contravene that requirement or the requirement that he act fairly and take every precaution reasonably available to guard against mistaken evidence of identification in the identification process.
During the photographic identification process, Carr’s pen did appear in the video (exhibit VD D2.5) to be pointing in the general direction of Kipa’s photograph. Allowing for the error of parallax, however, I was not satisfied that his pen was pointed at that photograph. I accept his evidence that he did not assist, nor endeavour improperly to assist, Sadler in making his selection.
Regarding the inexplicable omission by Carr to have dictated, in Sadler’s type-written statement, that three of his five captors had been wearing sunglasses, while that omission may be pertinent to Carr’s general credibility, I do not consider that it has any relevance to this application.
Reference to the record of interview (exhibit VD D2.6) between Carr and Sadler, during the identification process, indicated that there was nothing equivocal in Sadler’s recognition of Kipa. Equivocalness was only indicated in response to the subsequent question, “Where do you recognise number seven [Kipa] from”, when he said, “I believe he is the driver as I stated in my previous statement”.
Section 81(4)(a) of the Summary Offences Act 1953 empowers a member of the police force to take, or cause to be taken, “photographs” (plural) of a person in lawful custody on a charge of committing an offence, if the member believes on reasonable grounds that it is necessary for the purpose of identifying that person or identifying that person as the person who committed an offence. In my opinion, that provision clearly authorised the taking of the second photograph (exhibit VD P3) of Kipa, which was used in the identification process, because in the first photograph (exhibit VD P2) his eyes were closed.
For these reasons, in my judgment, the proposed photographic identification evidence of Kipa was admissible and could be adduced. In the exercise of my discretion, I did not consider that the evidence should be excluded. I so ruled.
Upon the further application of Kipa that “all witnesses” who participated in a process of “attempted identification” of Kipa by photographs should not be invited to make an in-court identification of him, I accept that those witnesses who did not there recognise Kipa should not be asked to make an in-court or dock identification of him (see R v Shannon & Shannon (1987) 136 LSJS 165, at 169, per King CJ). However, in my view, any witness who did recognise Kipa in a photographic identification process may be asked at the trial whether he or she can identify him in court (see R v Britten (1988) 51 SASR 567, at 572, per King CJ; and Clark & others (1996) 91 A Crim R 46, at 52 per Cox J). If there are cases in which it would be wrong to permit a supplementary dock identification, I do not consider that this case is one of them. I so ruled.
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