R v Bunting & Wagner (No 6) No. Sccrm-01-205

R v BUNTING & WAGNER (NO 6)
[2003] SASC 254
Criminal: Reasons for Rulings

MARTIN J John Justin Bunting and Robert Joe Wagner are jointly charged with eleven counts of murder alleged to have been committed between December 1995 and May 1999. In addition, Bunting is charged with a further count of murder alleged to have been committed in 1992 with Mark Ray Haydon and Wagner is charged with Assisting Offenders in connection with that crime of murder. Haydon has been granted a separate trial with respect to that and other charges of murder.
The facts are set out in detail in R v Bunting and Others (No 3) [2003] SASC 251. The Crown intends to lead evidence from a number of witnesses purporting either to identify positively the accused as persons engaged in carrying out activities relevant to the Crown case or to identify the accused as persons bearing similarities to those engaged in such activities. In addition to specific objections related to individual witnesses, a general objection to such identification evidence was taken by the accused because the identifications were made from photographs attached to photoboards containing a number of photographs of the heads and shoulders of the accused and other persons. I ruled against the general objection and I now set out my reasons for that ruling.
The accused were arrested on 21 May 1999. On 2 July 1999 fresh information was laid charging the accused with additional counts of murder. On 16 September 1999 the Director of Public Prosecutions (“the Director”) wrote to solicitors acting for the accused inquiring whether the accused were prepared to participate in a formal identification parade. The letter was in the following terms:
“I am advised by the police officers who are investigating this matter that they intend to give potential witnesses in this matter the opportunity to identify your client.
I write to ask if your client is prepared to participate in a formal identification parade?
I request that you advise of your client’s attitude to participating in a formal identification parade before the next court appearance on 5 October 1999.
If your client declines to participate in a formal identification parade, or if I have received no response by that time, the investigating police officers will attempt to arrange identification by alternative means.
If you wish to discuss this matter further please contact Rebecca Gray (82071584) of this Office.”
No reply was ever received from solicitors acting for Wagner. There is no evidence that any further communication took place between the Director and solicitors for Wagner concerning this issue.
Counsel for Bunting responded by letter of 5 October 1999. The letter indicated that the instructing solicitor was absent on leave. The relevant parts of the response were as follows:
“Due to the current state of this case I am not in a position to advise my client adequately about the issue of an identification parade. Therefore, at this time, Mr Bunting neither agrees nor declines to take part in an identification parade. More information is required from you before he will be in a position to make an informed decision.
Although the prosecution have produced approximately 200 witness statements to the defence, I understand that many more are yet to be supplied. In your letter of 16 September 1999 you do not identify how many potential witnesses the police intend to place in front of a line‑up. Do I have witness statements already that provide physical descriptions of the person who you allege may be John Bunting? If so, please identify the names of the witnesses and the statement number.
If potential witnesses who the police intend to place before the line‑up have not yet provided statements, or, if there statements have not yet been given to the defence, I require from you written details of the relevant physical descriptions given by each witness.
Further, please advise whether any of the potential witnesses have seen television images or newspaper photographs of Mr Bunting following upon his arrest in May 1999?
Please provide the information requested immediately. Upon receipt of the same I will endeavour to receive my client’s instructions promptly, subject to the serious restrictions upon adequate funding for his defence.” (my emphasis)
The Director responded to counsel for Bunting by letter of 6 October 1999:
“I refer to your letter of 5 October 1999.
I have previously enquired whether your client would make himself available for a formal identification parade.
As you are aware a formal identification parade is the preferred method of identification for reasons that have been well documented over the years.
Identification procedure with respect to your client may provide material in the course of the ongoing investigation and may ultimately provide probative evidence at the trial of your client in accordance with procedures that have been well established in this country.
I am not able to confine the list of potential witnesses who may participate in the identification of your client nor is it necessary to do so. It is undesirable for investigators to be hindered at this important stage of the investigation of this matter.
Prior to the trial of your client you will have statements from any witnesses who have participated in the identification process and any other information which is relevant.
It is matter of some urgency that you indicate one way or another whether your client is prepared to participate in a formal identification parade and I request that you advise this office by the 25 October 1999 whether your client is prepared to participate in a formal identification parade. Unfortunately if we do not receive such advice by the 25 October 1999 it will be necessary to arrange identification by alternative means. If identification is conducted by the use of photographs the process will be video‑taped.”
On 26 October 1999 solicitors for Bunting wrote to the Director expressing concern about publication of the images of the accused in the media and in publication of a sketch of the accused in the dock. In that context, the solicitors wrote:
“I refer also to recent letters from your office dated 16^th September 1999 and 6^th October 1999 by Ms Rebecca Gray requesting that Mr Bunting participate in an identification parade. In this context you can obviously understand our concern about media breaches of the Suppression Order.”
The letter of 26 October 1999 was a day after the deadline set by the Director in the letter of 6 October 1999. The response did not alter the position taken by Bunting in earlier correspondence. Solicitors for Bunting wrote again to the Director on 27 October and 16 November 1999 concerning breaches of the suppression orders, but no reference was made to Bunting’s attitude to participating in an identification parade. On 23 November 1999, during submissions before a Magistrate concerning a subpoena, counsel for Bunting mentioned the fact that Bunting had been asked to participate in an identification parade. Two days later the Director referred to counsel’s submissions in a letter of 25 November 1999:
“I refer to Mr Griffin’s submissions on the 23 November 1999.
In relation to the submission about providing advice to your client about an identification parade, I draw your attention to our previous correspondence in this matter, in particular our letter of 6 October 1999.”
It appears that no further correspondence or communication occurred with respect to the issue of an identification parade. The first identification by use of the photoboards occurred on 22 November 1999.
Counsel for Bunting submitted that, in substance, through the actions of the Director the investigators had not offered Bunting the opportunity of participating in an identification parade. He argued that when the accused was asked to indicate an attitude to participating in an identification parade, he was entitled to make an informed choice. The information sought in the letter of 5 October 1999 was required to enable the accused to make an informed choice. In particular, the accused was entitled to know what description of the person in question had been given by each witness in order to determine whether, in view of the appearance of others who were to take part in the parade, the procedure would be fair.
In support of his argument, counsel advanced an interesting proposition that existing procedures for identification parades are based upon a fundamentally flawed assumption that the suspect should be placed in an identification parade with persons of similar build and general appearance to the suspect. While acknowledging that this is done in an endeavour to be fair to a suspect, he contended that such a procedure misses the point of the process. The proper process is to use the description given by the witness as the basis for selecting other persons to participate in the identification parade.
Counsel readily acknowledged that there is no Australian authority that supports his proposition as to the proper basis of selecting participants in an identification parade. In Alexander v The Queen (1981) 145 CLR 395, Gibbs CJ referred to the appellant’s submission that the proper course is to hold an identification parade at which the witness can be asked to pick the accused “from a sufficient number of more or less similar persons”. His Honour appears to have proceeded on the basis that a parade should be conducted in that manner (398). Mason J referred to the Devlin Report as explaining the reasons why a parade is the preferred method of identification (page 428). Part of the passage cited from that report is as follows:
“The object of the parade is to surround the accused with a number of people bearing a sufficient resemblance to him.”
The procedure of placing a suspect in a line‑up with persons of similar build and appearance has been the accepted procedure for many years. It has been regarded as the fairest procedure. The training and guideline manuals for the South Australian Police all proceed on that assumption. Section 3ZM(6)(b) of the Crimes Act 1914 (Cth) provides that participants in an identification parade must resemble the suspect in age, height and general appearance. In Cross on Evidence (6^th Australian Edition) the learned author states [1420]:
“It has been said that, if properly carried out, an identification parade is the most reliable means of identification. For one thing, it is inevitably held in the presence of the accused, who can observe and later relate any aspect of the parade which weakens the reliability of the identification. For another, the parade is constructed on the basis of getting together people as similar looking to the suspect as possible;” (Footnotes omitted; my emphasis).
It appears that procedures in the United Kingdom also proceed on the same assumption. Pursuant to the Police and Criminal Evidence Act 1984, Statutory Instrument 2002 No. 615 provides in Annexure B para 9 that the identification parade shall consist of at least eight people (in addition to the suspect) “who so far as possible resemble the suspect in age, height, general appearance and position in life”. “Identification parade” is defined as a procedure “where the witness sees the suspect in a line of other people who resemble the suspect”.
As to the request for information, no Australian authority was cited in support of the proposition that the accused is entitled to the information sought before an identification parade is conducted. In March 2001, Bleby J was faced with a similar request in the trial of Graham Joseph Dow‑Clarke. Photographic identification had been undertaken after an indication by the accused’s solicitors that the accused would not participate in an identification parade unless his solicitors had been provided with original descriptions given by the witness of the persons she had seen. Those descriptions were not supplied by the police. The accused maintained that the failure to supply the descriptions was a valid justification for the refusal to participate in the identification parade, thereby precluding the use of other means of identification. In overruling the objection, Bleby J observed that there is no requirement that a suspect or an accused person be provided with witness descriptions of an offender before the identification process is undertaken. His Honour said:
“In my opinion, the accused’s submissions fail to distinguish between the police investigation of an offence, which is not subject to any duty of disclosure, and the prosecution, or the conduct of the trial, in respect to that offence.
The duty of disclosure, of course, relates to the necessity of allowing a fair trial and it does not attach to the police investigation of an offence.”
In my opinion, there is considerable force in his Honour’s observations, but I note the contrary view apparent in the provisions of the Statutory Instrument to which I referred. It contains a direction that a record shall be made of the description of the suspect as first given by a potential witness and that this must be done before the witness is asked to participate in the identification procedures. In addition, specific direction is given that before the identification parade takes place, the suspect or the suspect’s solicitor shall be provided with details of the first description of the suspect given by any witness who is to attend the identification parade. The provisions also state that the suspect or the solicitor should be allowed to view any material released to the media by the police for the purpose of recognising or tracing the suspect (provided it is practicable to do so and would not unreasonably delay the investigation).
The proposition that, in order to make an informed choice, a suspect or the accused is entitled to know in advance both the identity of persons who will view a prepared identification parade and the descriptions given by those persons tends to have some appeal. When a suspect or an accused is being asked to consider whether to take some action which might assist investigators in the course of their investigation, in the interest of fairness there is a natural tendency to favour the provision of information to an accused. An example is found in the duty of the police when questioning suspects prior to the point at which a formal caution is required. A stage may be reached where fairness requires that suspects be informed of the nature of the matter under investigation. In R v Szach (1980) 23 SASR 563, after observing that police are entitled to employ legitimate investigatory skills and that often a skilful inquiry will involve non‑disclosure of information known to the police, King CJ said (583):
“A stage may come, moreover, in the course of police inquiries when some degree of disclosure is requisite. If the investigation proceeds successfully, it will reach a stage at which the police are satisfied about the nature of the crime which has been committed and believe that it was committed by a particular person. It then becomes necessary to interrogate that person, with a view to laying the foundation for charging him with the crime unless in the course of the interrogation he is able to exonerate himself. I think that at the stage of commencing such an interrogation, the dictates of fairness differ from those applying to the earlier stage of the investigation. The focus of the investigation has changed. The investigation has passed beyond the stage of merely putting questions with a view to eliciting useful information. It has hardened into an interrogation of a particular person who is likely to be charged with the crime unless he can exonerate himself. The requirements of fairness change in accordance with the changed situation. While the police are merely seeking information, fairness involves no more than that the questions asked be fair questions, that the person questioned be given a fair opportunity to make the reply which he desires, and that his answers be faithfully reported. When the prime suspect is being interrogated with a view to charging him, the emphasis changes. The decision which he must make as to whether to exercise his rights to silence becomes a crucial consideration. It is important that he should take the care in considering and formulating his answers which is appropriate to the seriousness of his position. Fairness to the suspect, in those circumstances, requires that he be made aware of the nature of the crime concerning which he is to be interrogated. These considerations led White J. to exclude confessions in Reg. V. Fieldhouse [(1977) 17 S.A.S.R. 92] and Reg. V. Hart [(1977) 17 S.A.S.R.100]. I think that fairness may often require that the suspect be told the nature of the crime under investigation at an earlier stage than that at which the investigating officer is required to give the caution.”
The touchstone is one of fairness. It is this touchstone to which counsel for Bunting appealed in submitting that the information requested was required in order for the accused to make an informed choice concerning participation in the identification parade. However, underlying that proposition was the contention that in order for the parade to be fair, those engaged in the parade should fit the descriptions given by the witnesses. The accused could not determine in advance whether the procedure would be fair unless he had available the descriptions given by the witnesses.
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 similar build and appearance to the accused. If that prevailing view is accepted, in order to determine whether the conditions of the identification parade would be fair, the accused did not require knowledge in advance of the descriptions given by the witnesses. No doubt it would have been of advantage to the accused to know whether the witnesses had given a description matching him, but the provision of those descriptions was not a necessary pre-requisite to the conduct of a fair identification parade.
In my opinion, the investigators complied with their duty to offer Bunting the opportunity of participating in an identification parade before using photographic identification procedures. They were entitled to regard the failure of the accused to respond to the final ultimatum as a refusal to participate in an identification parade.
As to Wagner, I reject the submission that the investigators were obliged to follow up their initial communication. While it is possible to speculate that, for some reason not disclosed in the evidence, Wagner’s solicitor did not receive the letter of 16 September 1999, in the absence of evidence to that effect I am entitled to assume that the communication was received. From the perspective of the Director and the investigators, it was reasonable to interpret the failure of the solicitor to respond as a refusal by Wagner to participate in an identification parade.
If I am wrong in these conclusions, I would not hesitate to exercise my discretion to allow the evidence (subject to any other objections with respect to individual witnesses). The investigators were proposing to follow recognised and well accepted procedures for identification parades. They offered the accused the opportunity of participating. At that time, there was no Australian authority which suggested that Bunting was entitled to the information requested. I see no reason to doubt that the Director and the investigators believed that they had complied with the duty to offer the accused the opportunity of participating and that, in substance, each accused had refused.

It is also relevant to bear in mind that the police were involved in a massive investigation involving huge resources. As counsel for the Director point out, the bodies had found in May 1999 and, in late 1999, the police were still gathering information in an endeavour to ascertain the circumstances in which the deceased had met their deaths. Ultimately, approximately 1600 statements were filed. Approximately 120 photographic identifications have been conducted. Approximately 130 identification parades have been conducted in respect of the witness Vlassakis. Not all statements contained descriptions. It was important that the police were able to proceed with reasonable efficiency. As counsel for the Director pointed out, if Bunting was entitled to assess his position with respect to each individual witness the potential existed for the accused to frustrate and delay the investigation and identification processes.
For these reasons, I overruled the general objection based upon the use by various witnesses of photographic means of identification.

[2003] SASC 254

29 October 2003