R v Chimirri
[2002] VSC 559
•11 December 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1479 of 2002
| THE QUEEN |
| v |
| TERRENCE CHIMIRRI |
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JUDGE: | OSBORN J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 2-6 DECEMBER 2002 | |
DATE OF RULING: | 11 DECEMBER 2002 | |
CASE MAY BE CITED AS: | R. v. CHIMIRRI | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 559 | |
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Admissibility of photo and video identification - Whether prejudicial effect outweighs probative value.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. McDermott | Office of Public Prosecutions |
| For the Accused | Mr S. Shirrefs and Mr D. Hannan | Balot Reilly |
RULING ON VIDEO IDENTIFICATION
HIS HONOUR:
The background facts to this matter are set out in my ruling with respect to the use of a covert tape in evidence.
A further preliminary evidentiary issue arises with respect to the use of police photographs and video identification evidence. At the time the issue of identification evidence was initially ventilated before me, neither the Crown nor the defence appear to have been aware of the police photograph evidence. As the evidence unfolded upon the voir dire with respect to the video evidence, however, it became increasingly clear that the question of prior identification by reference to a police photograph was of very substantial significance. This ruling thus concerns proposed identification evidence both by reference to a police photograph and a video.
The evidence on the voir dire extended over a number of days. The most significant matters were as follows:
(a) Ebrahim made a police statement shortly after the shooting on 5 April 2001 which included the following:
"I saw that the male driver of the Supra was looking back at me. I held my hand out towards him to say to him, 'What was he doing', it was only a sign for him to take it easy. I never actually said anything. The driver had his window down and I could see him easily. I could also see the male passenger in the front passenger seat. There was also a female in the back.
The driver was yelling back at me. He was really giving it to me. The passenger in the front then opened his door. He stood in the door with one foot on the road and the other still in the car. I then saw that in his left hand he was holding a gun. It looked like a small silver one, the type that you put a magazine in. He had his arm stretched out across the windscreen of the Supra and was pointing the gun towards me. I saw it a shit myself (sic). I ducked my head down, put the car into first and took off. I went through the roundabout up Edgars Road. I watched in the mirror as the Supra came up behind me, rounded me up and took off right up to the end of Edgars Road. He did a quick U-turn and came back towards me. He came back towards me pretty quick. As he got closer he slowed down but not to a complete stop. As they did I saw a passenger stick his arm out of the passenger window and across the front of the Supra's windscreen. He was again holding the gun. I was still going north and doing about 50 kays [sic]. As I approached and came up next to the Supra I kept my eye on the passenger. I saw a flash came out of the gun and heard a bang. The flash looked like a fire cracker going off … I ducked my head down and tried to change down gears to get away. I didn't see the second shot got off but I heard it. It went off about a second after the first. Straight after the second shot I heard the window in the back of my car shatter and there was a ting sound …
I remember looking back over my shoulder and seeing that the window was smashed. I was shattered, I thought who the hell was this guy that shot at me. I did a U-turn and took off down Edgars Road. By the time I reached the roundabout at Kingsway Drive the Supra was miles ahead. It looked like he was really flying. There was no way I was going to catch him.
I kept driving down Edgars Road until I stopped the Supra at Main Street. He had got stuck at the red light so I slowly came up behind him. As I got up near to him I wrote the rego down on the palm of my left hand. The rego was QUF 888 …"
(b) It is clear from the police evidence that Ebrahim was still shaken by the incident at the time of making this statement.
(c) The police evidence is that Ebrahim did not give a more detailed description of the driver to the police on 5 April. On 6 April he told Detective Senior Constable Wheeler of Mill Park CIU that the driver "looked Macedonian".
(d) By 6 April 2001 Ebrahim had been told by a large number of people that one Zayat was the driver of the other vehicle involved in the incident and that the accused was bragging he was the shooter.
(e) Ebrahim's evidence is in part confused and/or confusing but the thrust of it is that he knew of the accused but did not know what he looked like before the shooting. Ebrahim and the accused were from the same area.
(f) Ebrahim gave evidence that he was shown a photo book containing a photograph of Zayat at the Mill Park CIU. Zayat was the registered owner of the car with the registration number which Ebrahim had noted down.
(g) Ebrahim says he was also shown a photo book at Mill Park which contained a photograph of the accused. This photograph had the accused's name underneath it.[1]
[1]Tp.225
(h) In evidence before me Ebrahim said Zayat was in the car but at the committal hearing relating to the incident he stated in cross-examination that Zayat was not. Ebrahim appears to take the view that he has no grievance against the driver of the other car but he does have a grievance against the accused who he says fired the shots.
(i) No police evidence was given as to the identification of the accused by reference to a photograph in a photo book. No photo or photo book were produced in evidence before me. No record relating to a photo based identification was produced from police files.
(j) It is apparent the Organised Crime Squad took the matter over relatively shortly after it was first investigated by the Mill Park CIU. This was because of an interest in Zayat whose potential involvement in the matter would have been immediately apparent from the registration in his name of the car involved in the incident.
(k) Information was received by the Organised Crime Squad via a traffic policeman on 18 April 2001 which led to advice from an informer on 24 April that the accused was the shooter. A video of the accused attending Epping Police Station was made on 2 May 2001.
(l) The video identification took place on 24 May 2001. Ebrahim was shown an extended sequence of video tape taken of persons attending a counter at Epping Police Station. He identified the accused upon that tape in the presence of two independent police officers, one of whom gave evidence before me.
(m) The video identification was itself audio taped. Whether because of the audio taping no notes were taken or because such notes have been lost, no notes were available to refresh the memory of the police witness. The audio tape has also been lost and the police officer who gave evidence before me fairly concedes that he cannot recall the precise terms in which Ebrahim identified the accused from the video tape.
(n) Ebrahim made a written police statement to the investigating police officers after the video identification had been completed. This statement has also been lost.
(o) A further written statement as to the video identification was made in a car park at Craigieburn some five months later in October 2001. Ebrahim wished to meet the police out of town and at that time lived in Craigieburn. The discussion between police officers and Ebrahim at the time of the making of the statement was secretly taped by police. The tape records the following exchange concerning the statement previously made as to video identification:
"Archbold:I mean. I – I can't recall making a statement. I know we made a couple, but I can't recall making one on the day so if we made one, I've obviously lost it.
Ebrahim:Now, I can look for it …
Archbold:And that's another one.
Fanizza:Mm?
Ebrahim:I know that I've looked for people.
Archbold:Yeah.
Ebrahim:Please. Yeah, that wink, I can look through that wink too, mate. Don't worry.
Archbold:I smile and I wink all the time. Want a bit of chewy?"
(p) When asked in evidence before me what he meant by the phrase "I know that, I've looked for people", Ebrahim said: "As in looking in the book".[2]
(q) In evidence before me Ebrahim described the shooter involved in the incident as having "a bit whitey and a bit browny" or "fair" hair, a description inconsistent with that given by him at the committal which was of a person with short dark hair (like the accused).
(r) Independently of the incident in issue an off-duty police officer intercepted the other car involved in it a relatively short time prior to the incident and observed a male front seat passenger with long fair hair.
(s) Ebrahim showed no hesitation in identifying the accused as the offender by reference to the video tape when that tape was played to him in evidence before me.
[2]Tp.226
Although Ebrahim's evidence varied as to some matters of detail, he was consistent in his evidence before me that he picked out the accused from photographs he was shown, e.g.:
"Who described the offender to you? –-- Myself.
Yourself?---Yeah, when they showed me the photographs."[3]
Furthermore he reinforced his evidence to the following effect in re-examination:
"On the day that you viewed the video, had you already seen a photograph of Mr Chimirri?---Yeah.
Where?---At Mill Park."[4]
[3]Tp.234
[4]Tp.242
This evidence might be thought by a jury to be reasonably credible:
(a) The police management of the matter was evidently confused either at or after the take over of the matter by the Organised Crime Squad;
(b) The senior detective at Mill Park concedes it is possible Ebrahim would be shown photo booklets in the normal course of the investigation;
(c) The absence of a whole series of other matters from the police files means that no satisfactory inference can be drawn from the failure to record a photo based identification in the police files;
(d) As Senior Detective Archbold said the police had photographs not only of Zayat but also of his known associates; and
(e) Neither Archbold[5] or Wheeler[6] are certain as to whether or not Ebrahim may in fact have identified the accused from photographs. In this regard I observe that it is difficult to place confidence in the detailed recollection of the police officers generally in the absence of specific notes.
[5]Tp.22
[6]Tp.194-5
Even if Ebrahim's evidence were not thought entirely credible as to the sequence of identification such evidence nevertheless forms an integral part of his evidence of the fact and process of identification. This evidence forms the critical basis of the Crown case which turns on identification by a single witness, namely Ebrahim.
In Alexander v The Queen Gibbs CJ stated the rationale for permitting evidence of identification subsequent to the events in issue but prior to trial as follows:
"Evidence given by a witness identifying an accused as the person whom he saw at the scene of the crime or in circumstances connected with the crime will generally be of very little value if the witness has not seen the accused since the events in question and is asked to identify him for the first time in the dock, at least when the witness has not, by reason of previous knowledge or association, become familiar with the appearance of the accused. The reasons for this were explained in Davies and Cody v The King (1937) 57 CLR 170 at pp.181-182. In particular there is the danger that the witness will too readily come to believe, without any clear recollection, that the man charged is the man whom he had previously seen, particularly if his own memory has become dim and there is some resemblance between the two men. The courts in England and Australia have long recognised the danger of acting upon evidence of identification made in those circumstances. It has accordingly become established practice for a witness to be asked to identify the accused at the earliest possible opportunity after the event, and for evidence to be given of that act of identification. Such evidence is, in practice, given not only by the person who made the identification but also by persons who saw it made."[7]
[7](1980-1981) 145 CLR 395 at 399
The rules as to admissibility of evidence as to the process of identification respond in part to the peculiar sensitivity of such evidence. The Devlin Report stated:
"… Normally when the court has to reach a conclusion about an incident or event, it does not have to make a finding on each detail; it is enough if out of the evidence as a whole there can be extracted as much of the story as it is necessary to know in order to determine the point in issue. But in identification evidence there is no story; the issue rests upon a single piece of observation."[8]
[8]Report to the Secretary of State for the Home Department of the Departmental Committee on Evidence of Identification in Criminal Cases. HMSO London 1976 (Chairperson Lord Devlin) para.4.25. Analysed and discussed in the Interim Report No. 26 of the Australian Law Reform Commission on Evidence, vol.1, ch. 18 AGPS 1985.
It also follows from the singularity of the issue that two doubtful identifications will be no more credible than one. In R v Burchielli[9] Young CJ and McInerney J observed:
"Now it often happens that two pieces of evidence, each in themselves unconvincing, will in combination produce a high degree of persuasion of a particular conclusion. The reason is often that the coincidence of the two pieces would be unlikely if the ultimate fact or conclusion had not occurred. But this is not true of identification evidence. Two unsatisfactory identifications do not support one another in the same way as two primary facts may lead to the conclusion of an ultimate fact."
[9][1981] VR 611 at 616
In Alexander the Chief Justice went on to observe that although in theory evidence of the manner in which an accused was identified goes to the weight rather than to the admissibility of evidence of identification, the manner of identification may give rise to a question of whether the evidence should be excluded. He concluded:
"The authorities support the conclusion that I have reached which is, as a matter of law, evidence of an identification made out of court by the use of photographs produced by the police is admissible. However, a trial judge has a discretion to exclude any evidence if the strict rules of admissibility operate unfairly against the accused. 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. In a case such as the present it seems to me proper for a trial judge, in deciding how he should exercise his discretion, to take into consideration that it is the duty of police officers investigating crime to take every precaution reasonably available to guard against the miscarriages of justice that can occur, and have in fact occurred, because of honest but mistaken evidence of identification, and that for this reason 'only in exceptional cases should photographs be used at a stage when some particular person is directly suspected by the police and they are able to arrange an identification parade or some other satisfactory alternative means whereby the witness can be asked directly to identify the suspected person': Reg. v Russell (1977) 2 NZLR at p.28."[10]
[10]p.402
Mason J (with whom Aikin J agreed) stated the relevant principle as follows:
"In my opinion the Australian cases demonstrate that identification from police photographs is admissible evidence, that its probative value may be important, that the judge has a discretion to exclude it when he considers its prejudicial effect outweighs that value, and that directions may be given to ensure that unfair use is not made of the evidence."[11]
[11]p.430
These statements of principle give rise to the following questions:
(a)Does the probative value of the identification evidence outweigh its prejudicial effect; and
(b)Can any relevant prejudicial effect be adequately met by appropriate directions?
In Festa v The Queen[12] McHugh J commented on the concepts which must be balanced in the application of these principles:
"(51)But the weakness of relevant evidence is not a ground for its exclusion. It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial simply because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task."
[12]76 ALJR 291
He further observed at (64):
"… Experience has shown that juries are likely to give positive-identification evidence greater weight than that to which it may be entitled. Few witnesses are as convincing as the honest – but perhaps mistaken – witness who adamantly claims to recognise the accused as the person who committed the crime or was present in incriminating circumstances. That is why this court insisted in Domican v The Queen that juries be given directions concerning:
·the dangers of convicting on recognition evidence where its reliability is disputed, and
·the factors (if any) that may affect the reliability of that evidence in the circumstances of the particular case.
(65) In exercising the discretion to exclude positive-identification evidence, the judge must take account of the risk that that evidence will be given greater weight than it deserves and will operate to the prejudice of the accused. In considering that risk, the judge must determine whether the Domican directions that will be given will be likely to overcome the prejudice that might ensue without those directions. If, despite those directions, the risk of prejudice remains and the evidence is weak, the proper exercise of the judicial discretion may require the exclusion of the evidence …"
It can be seen that the practice with respect to calling evidence as to identification enables evidence to be given both as to the fact of recognition and of the cognitive process of recognition including what may be a critical step in the process, which occurs between observation of an offender at the time of the crime and recognition and identification of that person at a trial. This enables the defence to challenge and address the probative weight of the identification by making explicit the intermediate circumstances and process of identification. It allows evidence not simply from the witness but also from a third party or third parties as to such intermediate circumstances. The present case raises serious difficulties not only by reason of uncertainty as to the nature of the intermediate circumstances of the identification process but also by reason of the apparent absence of evidence that the police officers involved took what Gibbs CJ in Alexander called "every precaution reasonably available to guard against the miscarriages of justice that can occur, and have in fact occurred, because of honest but mistaken evidence of identification."
The use of photographic evidence for the purpose of identification presents some particular difficulties. These were described by Stephen J in Alexander v The Queen as follows:
"The accuracy of any identification of a stranger, seen once only, is likely to be affected by the fallibility of human perception and memory. When identification is attempted with the aid of photographs, there are introduced peculiar difficulties, due to the various ways in which photographic representations differ from nature: their two dimensional and static quality, the fact that they are often in black and white and the clear and well lit picture of the subjects which they usually provide. The use of photo identification in the evidentiary process involves three further factors of a quite different kind which apply only to its use in that process. Unlike the case of an identification parade, an accused whose identity as the offender is sought to be proved at his trial by evidence of previous photo identification is likely to know nothing at first hand of the way in which the identifying witness earlier identified his photograph as that of the offender. He must rely upon cross-examination of prosecution witnesses, for knowledge of the conditions of identification and of what safeguards were taken against error on the part of the identifying witness. Again, by what may be called the 'rogues' gallery" effect, evidence that the police had in their possession and showed to the identifying witness photographs of the accused may often strongly suggest to a jury that the accused has a criminal record, perhaps even a propensity to commit a crime of the kind with which he is charged. Their production in evidence or even reference to their existence, may then be highly prejudicial to an accused. Lastly, there is the 'displacement' effect. Having been shown a photograph, the memory of it may be more clearly retained than the memory of the original sighting of the offender and may, accordingly, displace that original memory. Any subsequent face to face identification, in court or in an identification parade, may, on the identifying witness' 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."[13]
[13]p.409
In Festa Gleeson CJ commented upon these issues by reference to notions of potential prejudice as follows:
"There are two principal dangers associated with identification by means of selection from a group of photographs. These were discussed in Alexander. There is the inherent risk of error associated with suggestibility, and what is sometimes called the displacement effect. But there is also a risk of a different kind. The fact that the police have photographs of a suspect might convey to the jury the message that the suspect is a person with a criminal history. A similar risk arises where identification is made in circumstances suggestive of a criminal background, such as where a person is asked to attend a police station and look at a number of people reporting in compliance with bail or parole conditions. This is sometimes called the rogues' gallery effect. Because of the evidence as to the circumstances in which the photo-board shown to Mr Hill was prepared, that is not an issue in the present case. The first kind of risk concerns the probative value of the evidence. The second is a risk that the jury will draw an inference about a fact which, even if true, would ordinarily be excluded from evidence. In that connection, some care is needed in the use of the term 'prejudice'. Where it is present, a risk of the second kind is clearly a risk of unfair prejudice. It is a risk that a fact will be suggested which is of a kind that is ordinarily excluded from evidence in the interests of fairness to an accused. But prejudice does not arise simply from the tendency of admissible evidence to inculpate an accused. It is unfair prejudice that is in question. Where evidence is relevant and of some probative value, prejudice might arise because of a danger that a jury may use the evidence in some manner that goes beyond the probative value it may properly be given. If there is relevant prejudice of that kind, it lies in the risk of improper use of the evidence, not in the inculpatory consequences of its proper use. If it were otherwise, probative value would itself be prejudice. All admissible evidence which supports a prosecution case is prejudicial to an accused in a colloquial sense; but that is not the sense in which the term is used in the context of admissibility."[14]
[14]?
In the present case the probative weight of the identification made by reference to the video is very materially reduced by three matters:
(a)the evidence as to the circumstances and terms of the initial photo book identification;
(b)uncertainty as to the terms of the video identification; and
(c)uncertainty as to the effect of the initial photo book identification upon the video identification.
These matters fall to be evaluated in a context of initial paucity of evidence of description of the offender by the victim and subsequent inconsistency as to such description.
Ultimately it must be concluded the video identification evidence is of low probative weight for the following reasons:
(a) Ebrahim gave no detailed description of the shooter in his initial statement, or to police on 6 April 2001. At the committal he gave evidence to the effect that the shooter had short dark hair. Before me he said the shooter had white and brown or fair hair.
(b) Ebrahim's evidence is the photo book identification was made when Ebrahim had been told of rumours in his neighbourhood and consequently believed that the accused was the shooter. Ebrahim says the identification was made by reference to a photograph which had the accused's name below it. There is an entirely unacceptable risk in these circumstances that Ebrahim identified the photograph to which the name pointed. In R v Chesworth[15] Hayne JA commented in the following terms upon a case in which a witness was shown a police photograph bearing a name:
[15]Unreported decision of the Court of Appeal, 21 August 1997
"One particular complaint about the second photographic identification should be noted. When the complainant made that identification, one of the photographs of the applicant that she picked bore his name. All other photographs in the albums which the complainant looked at had the names of the subject of the photograph obscured. It was said that to permit the complainant to see the name of the applicant made the identification unfair. The complainant later gave evidence that the name of the applicant meant nothing to her. It may be accepted that there had been some breakdown in ordinary police procedures but in my view the identification in this case was not rendered unfair by the fact that one photograph of the applicant bore his name. I do not accept that that pointed to that one photograph as one to be chosen."
This is a very materially different situation. In the present case it is clear that Ebrahim says he had been told and knew the name of the shooter before the photo book identification. In these circumstances the use of a named photograph was inherently unsatisfactory. The use of a named photograph could not do other than point to that photograph as the one to be chosen.
(c) The photo and photo book are not in evidence before me. This is also fundamentally unsatisfactory. If as Ebrahim says the first identification following the shooting was by reference to a photo contained within a photo book the absence of the relevant photo and the book from which it was taken makes the evaluation of that identification almost impossible.
(d) There is no other police record of the photo book identification. This further aggravates the matters already referred to.
(e) The subsequent video identification was audio taped but the audio tape had been lost. There is no satisfactory explanation for the loss of this tape. The independent police officer who was present during the video identification and who gave entirely credible evidence as to what occurred says he does not have notes of what was said by Ebrahim at the time of the identification. This is understandable because the identification was being audio taped. The officer cannot now recall the terms in which the identification was made. This gives rise to at least two significant concerns. Firstly, it cannot be shown by a corroborator that the identification was made in terms which were unequivocal.[16] Secondly, it cannot be shown by a corroborator whether the identification was made in terms which referred back to the photo identification.
(f) The statement made by Ebrahim immediately following the video identification has been lost. Once again there is no satisfactory explanation for this. The loss of this statement further throws into doubt the weight that can be accorded the video identification process.
(g) The statement ultimately made in the car park at Craigieburn some five months later with respect to the video identification, was made in circumstances which are embarrassed firstly by the delay between the video identification and the making of the statement, and secondly by the apparent taped reference by Ebrahim at the time to the initial looking for the accused in circumstances other than viewing the video.
(h) There is a significant underlying possibility that the identification by video was of the person previously seen in the photograph rather than of the offender as observed at the time of the incident.
[16]cf. R v Pitkin (1995) 80 A Crim R 302
It was also contended before me that the video identification process was not probative because although it showed some 44 males attending a counter at the Epping Police Station over an extended period of time, only four of the males shown were of the approximate age of the accused. I do not accept this submission. The accused had declined to participate in an identification parade which for the reasons set out by Gibbs CJ in Alexander's case remains the optimal procedure for the purposes of identification. Once the accused took this position, the use of the video identification procedure was both potentially of relatively high probative value (assuming it was not contaminated by prior events) and as fair a procedure as could be easily be adopted without the co-operation of the accused. In addition, the procedure had the advantages of providing images of the accused substantially in the round. It provided significantly better images for the purpose of identification than could still photographs of the conventional type.
I turn now to the question of prejudice. In my view the cumulative effect of the identification evidence is to unfairly prejudice the accused in a series of ways.
(a) The initial identification of the accused by reference to a picture contained in a police photo book carries with it potentially prejudicial connotations.
(b) The accused is, however, more fundamentally prejudiced in his capacity to attack the veracity of the identification because:
(i)the images contained in the photo and photo book are not before the court; and
(ii)the obvious explanation for the identification for which the accused would wish to contend carries with it extreme prejudice, i.e. the proposition that Ebrahim identified the photograph only because he had been told by many people in Lalor that the accused was the self-avowed shooter and the photograph was named;
(iii)the absence of the photo, photo book or other records of the identification process prejudices the capacity of the accused to explore the possibility that Ebrahim recognised the accused as a face with which he was familiar from the area although he had not previously known him by name.
(iv)the absence of police records or other corroborative evidence of the initial identification process exacerbates the risk that the jury will give undue and unfair weight to the evidence of Ebrahim and precludes the normal testing of a corroborative police witness as to the circumstances of an intermediate identification between the happening of the alleged crime and the trial.
(c) The above matters give rise in turn to an unacceptable risk that the video identification was of the "head" previously seen in the photo book rather than of the shooter as such.
(d) The accused was absent from the video identification and is very severely prejudiced in all the circumstances of the case by the fact that the audio tape of the video identification has been lost and the statement taken from Ebrahim shortly after the video identification has also been lost.
It was also put to me that the video identification was necessarily prejudicial to the accused simply because it showed the accused attending a police station. I do not accept this submission. The video shows a varied sequence of persons attending a counter at a police station. In my opinion it does not carry with it a material association of criminality despite the risk in this regard identified as potentially present in similar circumstances by Gleeson CJ in the passage I have quoted from Festa.
Nevertheless when the above matters relating to the probative weight of the identification evidence on the one hand and the prejudice to the accused on the other are taken into account it is in my view clear that in all the circumstances of the case the sequence of events associated with the identification procedures has led to a situation where the prejudicial effect of the evidence outweighs its probative value. The remaining question is whether such prejudicial effect can be adequately counterbalanced by a warning to the jury reflecting the requirements stated in Domican v The Queen[17].
[17](1991-1992) 173 CLR 555 at 561-2
In my view, although such a warning might be formulated to seek to address the probative deficiencies in the identification evidence, no warning could adequately address and prevent the risk of unfair prejudice in the circumstances of this case.
Firstly, there is an unacceptable risk that the jury will give the evidence more weight than it deserves in circumstances where the principal deficiencies in the evidence derive directly from failures by the police to preserve the relevant evidence. The initial photograph identified, the photo book from which it was chosen, police evidence of the manner of the initial identification, the audio tape of the video identification, and Ebrahim's contemporaneous statement concerning the video identification are all missing. Each of these deficiencies will necessarily magnify the potential effect of Ebrahim's direct evidence and constrains the capacity to challenge it.
Secondly, introduction of the identification evidence relating to the photograph and video tape would carry with it the real risk of prejudice arising from matters ordinarily excluded from evidence in the interests of fairness to the accused. These matters concern inferences that might be drawn from the use of rogues' gallery photographs and the forensic necessity facing the defence in order to discredit the initial identification to establish the prior belief of Ebrahim as to identity of the shooter derived from allegedly widespread hearsay rumour.
I therefore conclude that this is a case in which despite any Domican directions that might be formulated the risk of unfair prejudice would remain and the evidence is weak. The proper exercise of my discretion in these circumstances requires exclusion of the evidence.
This is a case in which it is so clear that the most reliable evidence of identification reasonably available has not been obtained and presented to the Court (in accordance with the principle stated by Gibbs CJ in Alexander) that it might also be concluded that the evidence should be excluded for reasons of public policy[18], or by reason of the general discretion to exclude evidence the use of which would result in an unfair trial for the accused.[19]
[18]cf. the judgment of the Court of Criminal Appeal with which Stephen J shared much of the substance in Alexander at p.421
[19]McDermott (1948) 147 CLR 501 at 506; Cleland (1982) 151 CLR 512 at 519; Lee (1950) 82 CLR 133 at 150.
For the above reasons evidence of the identification by reference to the photo contained in the police photo book and by reference to the video will be excluded from evidence.
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