R v Crawford
[2015] SASCFC 112
•14 August 2015
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CRAWFORD
[2015] SASCFC 112
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Peek and The Honourable Justice Nicholson)
14 August 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - NATURE OF DISCRETION - GENERALLY
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - PHOTOGRAPHS - GENERALLY
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - WARNING ADVISABLE OR REQUIRED - ADEQUACY OF WARNING - GENERALLY
Appeal against conviction. The appellant was convicted by a jury in the District Court of the offences of aggravated serious criminal trespass in a place of residence, aggravated assault causing harm and theft. The prosecution case was that the appellant and two co-offenders broke into the residence of the victim, swung at him with a shovel and stole his wallet. The appellant denied the charges and led alibi evidence that he was with his mother that afternoon. The prosecution case was largely circumstantial. A forensic examination of the premises revealed damage consistent with a home invasion and the appellant’s palm print was found at the point of entry. In his interview with the police, the appellant demonstrated esoteric knowledge of the victim’s premises. The prosecution also relied on three types of identification evidence. The first was the victim’s description of the offenders. Second, there was a claimed Facebook identification, and third, a formal identification procedure using a photographic array. After identifying the palm print as belonging to the appellant, the police told the victim the name of the appellant and the victim looked up the name on Facebook. The appellant sought to exclude the Facebook and photographic identifications on the basis that they were more prejudicial than probative and would cause unfairness to the appellant.
Whether the trial Judge should have excluded the evidence. Whether the Judge failed to take into account the dangers associated with Facebook identifications and the effect any contamination would have on the probative value of the photographic identification procedure evidence. Whether the verdict was unreasonable and could not be supported by the evidence.
Held per the Court:
The accumulation of the circumstantial evidence was such that it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt.
Held per Gray and Nicholson JJ:
1. The Judge did not err in admitting either the Facebook or the photographic identification evidence.
2. The police made an error which had unfortunate consequences and resulted in some unfairness to the appellant. However, there was no perceptible risk of miscarriage of justice that could not adequately be dealt with by appropriate directions to the jury.
3. It was within the Judge’s discretion to leave the issue of the weight to be afforded to the evidence to the jury. The Judge gave comprehensive directions to the jury on the risks associated with such evidence.
4. Appeal dismissed.
Held per Peek J (dissenting):
1. A reasonably diligent police officer would have appreciated that the telephone call alerting the victim to the name of a suspected offender would likely cause the victim to search social media and thereby contaminate his potential identification evidence.
2. The police statement relating to the photographic array procedure was seriously misleading. A transcript reveals that police took no real steps to counteract a displacement effect resulting from the Facebook search; that the victim did not clearly and unequivocally identify the appellant; and that his degree of susceptibility to subconscious pressure to choose a photograph was particularly high. The victim’s self-assessed certainty of about 60 to 70 per cent was very likely significantly inflated by the cumulative effect of the police telephone call and the supervening displacement effect resulting from the Facebook search.
3. It is unsafe, and unfair to the appellant, to require a jury to attempt to speculate as to what lesser percentage of certainty the victim might have had on the occasion of the photographic array procedure but for the contaminating effects of both the police telephone call and the victim’s Facebook search.
4. The police failed to perform according to the appropriate standard. The Judge failed to take into consideration this failure, and to appreciate the true nature and breadth of the general unfairness discretion and the public policy discretion.
5. The combined probative weight, if any, of the evidence of the Facebook search and photographic array procedure was greatly outweighed by its unfair prejudicial effect upon the trial.
6. All evidence of the Facebook search, the photographic array procedure and the police telephone call should be excluded pursuant to the general unfairness discretion, the Christie discretion and the public policy discretion.
7. The appeal should be allowed and a re-trial ordered.
Criminal Law Consolidation Act 1935 (SA) s 20(4), s 170(1), s 134(1) and s 285C, referred to.
Strauss v Police (2013) 115 SASR 90; R v Deering (1986) 43 SASR 252; R v Lobban (2000) 77 SASR 24; Bunning v Cross (1978) 141 CLR 54; R v Christie [1914] AC 545; R v Nguyen (2010) 242 CLR 491; Festa v The Queen (2001) 208 CLR 593; M v The Queen (1994) 181 CLR 487; Alexander v The Queen (1981) 145 CLR 395; R v Kostic and Stefanopoulos (2004) 151 A Crim R 10; Dupas v R (2012) 40 VR 182; Police v Dunstall (2014) 120 SASR 88; Pitkin v The Queen (1995) 69 ALJR 612; R v Ireland (1970) 126 CLR 321; Cleland v The Queen (1982) 151 CLR 1; Nicholas v The Queen (1998) 193 CLR 173; R v Rockford [2015] SASCFC 51; R v Hallam (1985) 42 SASR 126; Driscoll v The Queen (1977) 137 CLR 517; Pollard v The Queen (1992) 176 CLR 177; R v Swaffield (1998) 192 CLR 159; Police v Dunstall [2015] HCA 26, considered.
R v CRAWFORD
[2015] SASCFC 112Court of Criminal Appeal: Gray, Peek and Nicholson JJ.
GRAY J.
This is an appeal against conviction.
The defendant and appellant, Benjamin William Crawford, was charged on Information dated 15 April 2014 with the offences of aggravated serious criminal trespass in a place of residence,[1] aggravated assault causing harm[2] and theft.[3] At a trial before a Judge and jury of the District Court, it was the prosecution case that on 5 November 2013, the defendant and two co-offenders broke into the residence of the victim, Peter Allan Patrick Earley, swung at him with a shovel and stole his wallet. The defendant denied the charges and led alibi evidence that he was with his mother that afternoon.
[1] Criminal Law Consolidation Act 1935 (SA) section 170(1).
[2] Criminal Law Consolidation Act 1935 (SA) section 20(4).
[3] Criminal Law Consolidation Act 1935 (SA) section 134(1).
On 4 December 2014, the jury convicted the defendant of all three charges by majority verdict.
The Trial
The Prosecution Case
The prosecution case was largely circumstantial. Counsel for the prosecution submitted that the defendant and two co-offenders joined in a joint criminal enterprise whereby they broke into Mr Earley’s house by kicking in the laundry door during the afternoon of 5 November 2013. One of the co-offenders was armed with a bat and the other with a shovel belonging to Mr Earley. The defendant was unarmed.
Mr Earley gave evidence that he heard male voices outside his home. At the time the offenders entered his residence he was in the kitchen. He did not know any of the offenders. The defendant asked him “Where’s the money at?!” and then told the co-offenders to “Hit him” The offender carrying the shovel swung at Mr Earley and Mr Earley put his hands up to block the swing. Mr Earley managed to grab the head of the shovel and a struggle ensued. During the struggle Mr Earley saw the other co-offender taking his wallet. Mr Earley pushed past the offenders and escaped over his fence.
A forensic examination of the premises revealed damage consistent with a home invasion and the defendant’s palm print was found on the exterior of the laundry door. Further, in his interview with the police, the defendant demonstrated esoteric knowledge of the layout of Mr Earley’s premises. The prosecution also relied on three types of identification evidence from Mr Earley. The first was Mr Earley’s description of the offenders. Second, there was a claimed Facebook identification, and third, a formal identification procedure using a photographic array.
The Defence Case
The defendant gave evidence. He attested that Mr Earley was a drug dealer and that he had visited Mr Earley’s residence prior to the date of the offence to purchase cannabis. It was for this reason that the defendant’s palm print was on the laundry door and the defendant had knowledge of the inside of Mr Earley’s home. Counsel for the defence further submitted that Mr Earley would have recognised the defendant, due to the fact that the defendant was an occasional buyer of cannabis, and as such, mistakenly identified him as the offender on Facebook and in the photographic array. Defence put weight on the fact that Mr Earley was initially reluctant to involve the police. It was said that this suggested he had something to hide.
The defendant’s mother gave alibi evidence that the defendant was with her all afternoon on 5 November 2013. It was Melbourne Cup Day and the defendant and his mother were at the defendant’s brother house until after the last horse race. However, the notice of the alibi was served seven months late. Defence counsel said that this was due to the defendant’s mother being unaware of the date of the alleged offending until late in the piece and the defendant having no memory of what he was doing that day.
The prosecution submitted in response that the police found no evidence of drugs, or items that might suggest Mr Earley was a drug dealer, when searching his residence. The prosecution further highlighted the inconsistencies in the evidence of the defendant and his mother.
The Voir Dire
A voir dire was held on the first day of trial to determine an application by the defendant to exclude the Facebook and photographic array identification evidence. The means by which the police obtained the Facebook identification evidence was less than desirable. On 16 November 2014, Mr Earley received a phone call from a male police officer. Mr Earley was unable to remember the name of the officer and the officer has never been identified. The police officer informed Mr Earley that the police had identified some fingerprints from Mr Earley’s home. The police officer asked if he could tell Mr Earley the name of the person so that Mr Earley could say whether or not that person was a friend. The police officer said the name of the defendant and Mr Earley informed the officer that he did not know anyone by that name and has never known anyone by that name.
Mr Earley wrote down the name of the defendant. Sometime later that day, Mr Earley used the Facebook application on his mobile phone to search the defendant’s name. Mr Earley gave evidence that he looked at the top five or six profiles on the results page and recognised the defendant as one of the three offenders.
On 10 January 2014, Constable Plumb and Constable Dawson attended Mr Earley’s home to conduct a photographic identification procedure. Mr Earley was provided with a folder containing a photograph of the defendant and 11 other photographs. Mr Earley identified the defendant as being one of the offenders. The procedure was recorded and later played to the jury. The parties provided an agreed transcript of the video, which relevantly provided:
[Mr Earley]: Um I’m thinking number 10
[Mr Earley]: But I’m not one hundred percent sure
[Mr Earley]: It’s definitely none of these other guys
[Mr Earley]: (Continues to look at photographs, looks to be uneasy and fidgets a lot with one hand, taps fingers on table and puts hand to head and taps head with knuckles)
(Time elapsed: 00:32 seconds until response)
[Mr Earley]: Um errrrr I’m going to say 10
[Constable Plumb]: 10?
[Mr Earley]: Yer
[Mr Earley]: (looks over photographs again quickly)
[Constable Plumb]: ok
[Constable Dawson]: can you give us any reason why you believe its 10?
[Mr Earley]: Just the facial figures
[Mr Earley]: But the guy he looks like he’s been in a fight and the picture isn’t that clear
[Mr Earley]: Just the…. Just the facial figures
[Constable Dawson]: mmhmm
[Mr Earley]: definitely
[Constable Dawson]: Yep
[Mr Earley]: can’t see any of these guys
[Mr Earley]: (Glances at Photographs)
(Time Elapsed: 00:04 seconds till response)
[Mr Earley]: Yep I’m thinking I’m going to say 10, but I don’t want to get anyone in trouble if it’s not
[Constable Plumb]: nah it’s all good
[Constable Plumb]: alright so you’ve indicated photo number 10 as being the person involved in the matter under investigation
On the voir dire, counsel for the defendant argued that the evidence of the Facebook identification was more prejudicial than probative and that the Judge should exclude the evidence to ensure that there was no unfairness to the defendant. Counsel referred to the case of Strauss v Police[4] and the observations of Peek J as to the issues with Facebook identifications, including the lack of appropriate safeguards that would otherwise be used in police identification procedures. Counsel contended that the police should have warned Mr Earley against searching for the defendant on Facebook. The police’s failure to do so led to a significant risk that Mr Earley’s subsequent photograph identification was due to a displacement effect, that being the photograph of the defendant from Facebook displaced Mr Earley’s memory of the defendant from the time of the offence. Counsel further submitted that the probative value of the evidence was limited in any event as the identifications were based on Mr Earley’s memory of only a few of the defendant’s features.
[4] Strauss v Police (2013) 115 SASR 90.
The Judge overruled the defendant’s objections and admitted the evidence. His Honour held:
Although there is prejudice to the accused and a weakening of the evidence against him, in my view the probative weight of the evidence outweighs other considerations. The weaknesses in the evidence in my view can be the subject of directions to alleviate unfairness and prejudice.
The Judge gave extensive directions to the jury as to the evidence in summing up. After summarising the evidence of Mr Earley, the Judge said:
So that is relevant to the next topic I am going to cover as well but it is a question for you, but you might have serious reservations about the claimed Facebook identification and the worth of the recognition said to have come from looking at the police photographs.
...
You should approach the evidence of recognition or claimed recognition from Mr Earley with great caution. It is easy for an honest witness, and whether Mr Earley was an honest witness is obviously a matter for you, but it is easy for an honest witness to make a mistake and experience has shown that miscarriages of justice have occurred as a result. Witnesses can be mistaken even though quite sure of their recognition. A mistaken witness, you should bear in mind, who is sure of his recognition can be a convincing witness and therein lies a considerable danger. The ability to recognise or form and retain an accurate impression of a culprit, including his physical appearance and features, his dress or any other distinctive features may be affected by many factors, including the witness’s involvement in the incident as well as the frailty of human observation and memory and a tendency to reconstruct events in the mind over a period of time.
You may have experienced in your own lives making mistakes as to people’s identity. If you have been, for example, in a supermarket and think you recognise someone, it might be someone you know well, only to find out that it is not.
So mistakes can even happen when you know someone well and you can make mistakes. That is why you have to approach the claimed recognition and picking the photographs from the Facebook and the police photographic array with caution and scrutinise it with great care.
The additional difficulty is that recognition is difficult enough when you see someone face-to-face but made more difficult, you might think - but it is a matter for you - if someone at the relevant time has got sunglasses and a cap on when you cannot, therefore, see their eyes and not all of their facial features and you are then later shown a photograph where the person has not got those sunglasses and cap on.
So that is an additional potential problem that has to be thrown into the mix. I am required to alert you to the dangers attendant upon acting on evidence of recognition but you can, if after careful consideration of the evidence and the truthfulness and reliability of Mr Earley, form a judgment that after carefully examining the evidence and looking carefully at his evidence and paying due heed to the caution that I have given you, you are nonetheless satisfied about the correctness of his claimed identification or recognition then obviously you can act upon it.
The purpose of me giving you these directions is to alert you and tell you to proceed cautiously. Be aware of the fact that mistakes can happen and that sometimes confident witnesses can be mistaken and there is scope for a mistake even if someone is known to you previously and possibly even known well to you previously.
If you take the view that, having scrutinised that evidence with care, you are satisfied about the truthfulness of it, the accuracy of it, and bearing in mind the caution I have given you, you are still satisfied about the correctness of it then you can act upon it as truth that the accused was indeed the offender.
The Judge also explained the risk of the displacement effect to the jury:
Some of those considerations have a particular application here. There were, as I have already highlighted to you, some differences between the description given by Mr Earley first-up as compared with what he is now saying. But you also have what was touched upon, I think, by Mr White in this case: potential evidence of displacement. I will explain what that means.
We know from the evidence that Mr Earley has picked out the Facebook page of Ben Crawford and claims to say ‘That’s the man who came around to my house as offender No.3’, but you have to take great care because was he picking out offender No.3 or was he picking out the man who had been around to his house, perhaps on a number of occasions to buy cannabis, perhaps the most recent a couple of weeks before and maybe a couple of times before that again?
So has the memory of the man who came to buy drugs displaced his memory such that he cannot now accurately say whether the man he saw on Facebook was the man that came around and broke into his house or was he, in fact, the man who came around and quite - I will not say innocently, but just bought some drugs a couple of weeks before.
The potential displacement has a doubling-up effect here because when the police showed the photographs to Mr Earley the question then becomes who was he identifying? Was he identifying the man he saw in Facebook or was he identifying the man who bought drugs from him a couple of weeks beforehand or who? So that is an illustration of the real dangers of identification evidence, because, on the accused’s evidence, Mr Earley and the accused did, in fact, know each other in the sense that the accused had bought drugs from him at least on a couple of occasions in the not too distant time before 5 November last year.
So you need to bear in mind the great caution with which to approach Mr Earley’s claimed evidence of identification. You may take the view that his claimed evidence of identification is not reliable, in which case you can then say ‘How reliable is his general evidence of description of the man? Is that at least consistent or perhaps inconsistent with the features of the accused at the relevant time?’.
The Appeal
The defendant made two complaints on appeal. First, the Judge erred in admitting the Facebook and photographic identification evidence. It was said that the Judge failed to take into account the dangers associated with Facebook identifications and the effect any contamination would have on the probative value of the photographic identification procedure evidence. Counsel for the defendant submitted that there was a real risk the jury elevated the probative value of the evidence notwithstanding the directions of the Judge. Second, the unfair admission of the identification evidence, together with the paucity of the remaining circumstantial identification evidence, led to a verdict that was unreasonable and could not be supported by the evidence.
Counsel for the Director of Public Prosecutions submitted that the identification evidence was properly admitted and that any deficiencies in that evidence were matters of weight to be assessed by the jury. Counsel for the Director pointed to the careful directions given by the Judge when summing up. It was said that it was plain that the jury accepted the evidence of Mr Earley that he did not know the defendant. In this context, there was no innocent explanation for the palm print at the point of entry and that forensic evidence provided strong support for the identification evidence from Mr Earley. Counsel for the Director contended that the conviction was sustainable considering the palm print evidence, the description of the offender provided by Mr Earley, the identification evidence and the defendant’s esoteric knowledge of Mr Earley’s house.
Discretion to Exclude Identification Evidence
King CJ set out the law as to the exclusion of identification evidence in Deering.[5]His Honour, Olsson and Legoe JJ agreeing, held:[6]
The law is clear that evidence of identification obtained by means of inspection of photographs is legally admissible evidence. I refer to Alexander v. The Queen, per Gibbs C.J. at p. 400. There exists a discretion to exclude that evidence, however, where its admission would be unfair to the accused, or where in the interests of wider public policy the court deems it proper to exclude the evidence because of some impropriety in the procedure by which it has been obtained. ...
[Footnotes omitted.]
[5] R v Deering (1986) 43 SASR 252.
[6] R v Deering (1986) 43 SASR 252, 253.
The Court of Criminal Appeal considered the bases for exclusion of evidence in Lobban,[7] where Martin J identified three distinct, although overlapping, discretions:
-an overall discretion limited to confessional evidence, which does not apply to the present proceedings;
-a public policy discretion not limited to confessional evidence, also known as the Bunning v Cross[8] discretion; and
-a general unfairness discretion applicable to any evidence.[9]
[7] R v Lobban (2000) 77 SASR 24.
[8] Bunning v Cross (1978) 141 CLR 54.
[9] Since preparing these reasons the High Court decision of Police v Dunstall [2015] HCA 26 has been delivered. I agree for the reasons expressed by Nicholson J that R v Lobban (2000) 77 SASR 24 remains the law in this State.
Martin J covered the history of the public policy discretion in detail and concluded that:[10]
...the discretion [is] enlivened only when the evidence is obtained by unlawful, improper or unfair conduct on the part of law enforcement authorities.
[10] R v Lobban (2000) 77 SASR 24, 34.
However, Martin J noted that, while the public policy discretion should necessarily be confined to such circumstances, some circumstances which involve errors of law enforcement, while not meeting the criteria to enliven the public policy discretion, will be encompassed within the ambit of the general unfairness discretion. His Honour explained:[11]
… the concept of fairness to an accused is a broad one and the remarks of the majority in Swaffield, although made in the context of the unfairness discretion concerned with confessional evidence, are equally applicable to the operation of the general unfairness discretion. The purpose of both discretions includes the protection of ‘the rights and privileges of the accused’, which rights ‘include procedural rights’ (at 189 and 197). Both discretions look ‘to the risk that an accused may be improperly convicted’ (at 189). 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 exclusion of the evidence. In those circumstances the admission of the evidence would result in an unfair trial. In determining whether such a perceptible risk cannot adequately be dealt with by appropriate directions, however, the capacity of juries to understand, appreciate and apply directions should not be underestimated. In circumstances where the admission of the evidence would cause unfairness, but not to the extent of creating a perceptible risk of miscarriage of justice or a perceptible risk that could not be adequately avoided by directions, the nature and extent of the unfairness will need to be assessed as will matters such as the probative and prejudicial value of the evidence and its importance to the prosecution case. The court may need to weigh factors such as those that are considered in the context of the public policy discretion. In this way, the type of circumstances that existed in French v Scarman are encompassed within the general unfairness discretion. The factors to be weighed may well include the conduct of the law enforcement authorities and whether that conduct has contributed to the unfairness. For example, if the conduct of the authorities occurred with a view to placing an accused at a forensic disadvantage, and a disadvantage ensued, such conduct and the existence of the disadvantage would be highly relevant in determining whether the evidence should be excluded. This approach is consistent with the view taken by the Court of Appeal in Callis v Gunn [1964] 1 QB 495. In a judgment with which the other members of the Court agreed, Lord Parker CJ said (at 501):
[A]s is well known, in every criminal case a judge has a discretion to disallow evidence, even if in law relevant and therefore admissible, if admissibility would operate unfairly against a defendant. I would add that in considering whether admissibility would operate unfairly against a defendant one would certainly consider whether it had been obtained in an oppressive manner by force or against the wishes of an accused person. That is the general principle.
[11] R v Lobban (2000) 77 SASR 24, 48-9.
On appeal, counsel for the defendant did not contend that the Judge should have excluded the evidence in the interests of public policy. It was acknowledged on the voir dire and on appeal that there was no mala fides or deliberate impropriety in the conduct of the police. Counsel for the defendant conceded that the Bunning v Cross threshold had not been met. However, counsel submitted that the conduct of the police should be considered when determining whether the Judge should have exercised his discretion to exclude the evidence on the grounds of general unfairness.
Counsel for the defendant submitted the Judge should have exercised his discretion to exclude the evidence on the grounds of unfairness, or due to the fact that the evidence had little, if any, probative weight. Counsel said that the prejudicial effect of the evidence outweighed any probative value.
Authorities differ as to whether the Christie[12] discretion, which asks the Judge to consider if the evidence is more prejudicial than probative, is a separate head of discretion to that of general unfairness. This Court has favoured the view that the Christie discretion is an application of the general unfairness discretion. Martin J, with whom Doyle CJ and Bleby J concurred, said in Lobban:[13]
For the purposes of the present appeal, it is unnecessary to decide whether the Christie discretion is a separate head of discretion or is a particular example of the application of the general unfairness discretion. There may be little difference in practice. However, I favour the view that it is more appropriate to recognise the Christie discretion as an example of the application of the general unfairness discretion. In this way the exercise of the discretion is not fettered by the strictness that tends to accompany categories and all relevant factors, including the probative value in comparison with the prejudicial value, can be taken into account by the court. The majority in Swaffield identified the purpose of guarding against a miscarriage of justice as the purpose of the Christie-type discretion. The general unfairness discretion as I have described it achieves this purpose.
[12] R v Christie [1914] AC 545.
[13] R v Lobban (2000) 77 SASR 24, 49-50.
Counsel for the defendant submitted that the conduct of the police rendered the Facebook and photographic identification evidence so unreliable that it was more prejudicial than probative. In relation to the Facebook identification evidence, counsel relied on the following observations of Peek J in Strauss v Police:[14]
So called “Facebook identifications” have none of the safeguards which accompany a properly executed formal identification procedure conducted by the police. Purported Facebook identifications from group photographs are particularly dangerous in that they present a seductive and deceptive air of being a plausible identification but in fact rarely involve a group of people each having similar features to the accused; they suffer from “foil bias” as discussed above. Consequently, if a suspect with similar features to the real offender is depicted in a photograph of a group whose other members lack those features, the suspect will likely be identified by a witness as the offender in the fervour of the superimposed “Facebook chat” and the pressure of the moment. The displacement effect will then later proceed to erase from the memory the subtle differences between the real offender and the person identified. ...
[14] Strauss v Police (2013) 115 SASR 90, 103-4.
As discussed above, counsel further submitted that the latter photographic identification had been so compromised by the potential displacement effect as to render it incapable of informing the jury in any meaningful way.
The Judge, in delivering his reasons, specifically noted that in his view the probative weight of the evidences outweighed other considerations and that any prejudice arising from weakness in that evidence could be alleviated by directions. When considering whether the Judge’s exercise of discretion miscarried, it is necessary to consider the circumstances in which an appellate court will intervene. King CJ said in Deering:[15]
An appellate court will not interfere with the exercise of a discretion if the judge exercising the discretion has understood the law correctly, has made no error of fact, has taken into account all relevant considerations, and has excluded from his mind any extraneous considerations.
[15] R v Deering (1986) 43 SASR 252, 255.
In my view, the Judge made no error of law or fact. His Honour considered possible contamination from the displacement effect. He noted defence counsel’s submissions as to unfairness to the defendant. He weighed the potential prejudice to the defendant against the probative weight of the evidence. He specifically excluded the palm print evidence from his deliberations, stating:
For the purposes of my ruling I have not had regard to the palm print evidence. In my view it is doubtful whether a court in this situation can have regard to the strength of the other evidence said to be available in the case.
In my view, the Judge did not err in admitting either the Facebook or the photographic identification evidence. There was probative weight to the identification evidence, and while its value may have been limited, it was within the Judge’s discretion to leave the issue of the weight to be afforded to the evidence to the jury. As detailed above, the Judge gave clear, lengthy and strong directions to the jury on the risks associated with such evidence. The actions of the police had the potential to cause some unfairness to the defendant. The conduct of the police was not ideal. However, the unfairness was “not to the extent of creating a perceptible risk of miscarriage of justice or a perceptible risk that could not adequately be avoided by directions”.[16] The jury received clear directions as to the use of that evidence and, as noted in Lobban, the capacity of juries to understand, appreciate and apply directions should not be underestimated.
[16] R v Lobban (2000) 77 SASR 24, 48.
Verdicts Unreasonable or Not Supported by the Evidence
Once it has been determined that the evidence was correctly admitted, the second issue is whether the totality of the evidence, including the identification evidence, is sufficient to sustain the jury’s verdict. In Festa, a case also concerning identification evidence, Gleeson CJ explained:[17]
Questions as to the admissibility of evidence may be related to, but are different from, questions as to whether the totality of the evidence in a case is sufficient to sustain a jury's verdict, or questions as to the warnings that need to be given to a jury about the use that may properly be made of the evidence. If evidence is of some, albeit slight, probative value, then it is admissible unless some principle of exclusion comes into play to justify withholding it from a jury's consideration. It is not enough to say that it is “weak”, and, as already mentioned, whether it is weak might depend on what use is made of it. The totality of the evidence may be such as to render a conviction unsafe. But that does not affect admissibility. And the jury may need to be warned that evidence, if accepted, only shows consistency of appearance between the person and the offender; a fact which may or may not be of much significance depending upon other matters. Evidence of blood sampling may be relevant and admissible, for example, even though, standing alone, it only establishes that it is consistent with the accused being the offender. Evidence may show that an accused was near the scene of a crime. Such evidence, on its own, does not show that the accused committed the crime. That does not mean it is of no probative value; in the end, it will have to be considered together with all the other admissible evidence.
[17] Festa v The Queen (2001) 208 CLR 593, 599.
Counsel for the defendant submitted that the identification evidence was essentially worthless, especially when considered with the description provided by Mr Earley. Counsel noted the inconsistencies between Mr Earley’s descriptions of the offender in his statements to the police, his evidence in chief and the cross-examination evidence. Counsel further relied on the fact that Mr Earley identified the defendant both on Facebook and in the photographic array by using only a few facial features. In respect of the Facebook identification, counsel suggested that Mr Earley may have been influenced by the fact that the defendant was wearing a hat and sunglasses in the photograph as this is what Mr Earley had alleged the offender was wearing. In evidence, Mr Earley said of the Facebook identification that he had thought that the defendant was “sort of familiar” and “sort of similar to who was in my house”. Further, in relation to the photographic array, Mr Earley said that he was only about 70 per cent sure the defendant was the offender.
Counsel for the defendant submitted that there was no probative evidence in the form a description of the offender or valid identification to support the remaining piece of evidence as to identity, being the palm print evidence. Counsel for the defendant contended that, accordingly, there was insufficient evidence to support the defendant’s conviction and the verdict was unreasonable.[18]
[18] See R v Nguyen (2010) 242 CLR 491, 499.
Counsel for the Director submitted that the jury plainly accepted Mr Earley’s evidence that he had not sold the defendant cannabis. Thus the jury would have excluded any innocent explanation for the palm print evidence. Counsel argued that the palm print evidence provided strong support for a conclusion by the jury that Mr Earley did not make an error in his selection.
It is plain that the value of the identification evidence was relatively low. The Judge noted in his directions that the jury may have “serious reservations about the claimed Facebook identification and the worth of the recognition said to have come from looking at the police photographs”. However, the jury was entitled to accept the evidence of Mr Earley over that of the defendant. The jury was also entitled to doubt the alibi evidence of the defendant’s mother. If the jury believed the evidence of Mr Earley that he had never seen the defendant before, then there was no explanation for the palm print being at the point of entry. If the jury were to consider this forensic evidence in conjunction with the evidence of the defendant’s esoteric knowledge of the premises, there was enough circumstantial evidence to conclude that Mr Earley was likely correct in his identification. On this basis, it was open for the jury to be satisfied beyond reasonable doubt of the defendant’s guilt.
Conclusion
In my view, the Judge did not err by admitting the Facebook and photographic identification evidence. There was probative value to the evidence and the weight it was to be afforded was a matter for the jury. The conduct of the police, while arguably somewhat unfair to the defendant, created no perceptible risk of a miscarriage of justice once considered in the light of the extensive directions of the Judge. The totality of the circumstantial evidence leads me to conclude that the convictions are sustainable. I would dismiss the appeal.
PEEK J.
Introduction
Mr Benjamin Crawford, the appellant, was convicted by majority verdict of a jury of the offences of aggravated serious criminal trespass in a place of residence, aggravated assault causing harm, and theft. He was convicted on the basis that he was one of three offenders who committed the offences against the victim Mr Earley, at his house shortly after 4:00pm, on 5 November 2013 (to be compendiously referred to as the incident).
Very soon after the incident, at about 4:35pm on 5 November 2013, Earley gave a statement to a police officer describing the incident in the following way:[19]
[19] Earley subsequently signed the typed version of this statement on 17 November 2013.
At about 4:00pm on Tuesday the 5th of November 2013, I was in my bedroom which is situated at the front of the house on the eastern side. I was making the bed when I heard noises. It sounded like two (2) males talking right outside the bedroom window. I walked out of the bedroom towards the front door which is directly next to the bedroom. I heard the males try to open the screen but it was locked. The main door was opened. As I approached the screen door I saw the males walking west towards the two (2) roller garage doors and I then heard them open the garage door, which was unlocked. I double checked the side and back doors of the house to make sure they were locked. I could hear the males moving around in the garage. A few seconds later I heard someone kicking in the side door which is on the western side of the house. By this stage I was standing in the kitchen. Three (3) males broke through the side door and entered the house.
The first male I would describe as: Caucasian, about thirty (30) years old, slim build, about seventy (70) kilograms, six (6) feet tall, blonde shoulder length scraggly hair, slim face, clean shaven. I cannot remember if he had a goatee or not. He was wearing a light coloured yellow/grey or white t-shirt. He was holding a forty (40) centimetre long white baton which was possibly wooden.
The second male I would describe as: Caucasian, thirty (30) years old, stocky build, about eighty (80) kilograms, about five (5) feet eight (8) inches tall, tanned skin, dark coloured baseball cap, sunglasses and dark clothing. He was carrying a one and half (1.5) metre long garden shovel which I recognized as mine from my shed as it is old and rusty.
The third male I would describe as: Caucasian, thirty (30) years old, slim build, about seventy five (75) kilograms, about six (6) feet six (6) inches tall, tanned skin wearing a dark baseball cap and dark sunglasses. He was wearing dark clothing and was not carrying anything.
The first male with the baton rushed at me with the baton held high over his head as if he was about to hit me. I heard one of the males yell: He said, “Where’s the money at?!”. The first male hesitated and the second male with the shovel started towards me, as I heard the third male yell: He said, “Hit him!”.
The second male swung the shovel down at my upper body. He was only about one (1) metre away from me. I put my hands up to block the shovel. I then grabbed the head of the shovel with both hands. I tried to wrestle the shovel off the male and push them out of the kitchen at the same time.
As I was struggling with them I noticed the first male with the blonde hair was carrying my wallet which I had left on the kitchen counter. My wallet was a black and red “Ripcurl” wallet made from pleather. It contained all my cards and about one hundred dollars ($100) in notes.
I managed to push the males down the hall and past the laundry. I pushed the males away and ran through the laundry and out the side door. I jumped the front fence next to the garage and ran to my neighbour’s house to phone the Police. I knocked on the door of 9 Phillip Avenue and hid behind a blue vehicle in the front yard and called the Police on my mobile phone. I stayed behind the vehicle for about three (3) to four (4) minutes. I was still on the phone to “000” when I saw the three (3) males run down Phillip Avenue in an easterly direction towards Reginald Road.
… I have never seen the three (3) males before. I would recognize the three (3) males if I saw them again.
The police arrived very shortly after the incident and the premises were forensically examined. A palm print was detected on the outside of the laundry door where entry had been effected. Sometime later, forensic examination determined that this print was found to match the palm of the appellant.
The trial and this appeal
In summary, the evidence relied on by the prosecution at trial comprised the evidence of Earley concerning the incident, including his observations of the three offenders (and particularly the third man who, on the prosecution case, was the appellant), together with the following further categories of evidence. First, the finding at Earley’s house of the palm print matching the appellant’s palm print. Second, suggested “identifications” of the appellant by Earley during a Facebook search by himself and during his later participation in a police photographic array process. Third, the display by the appellant during his police interview of esoteric knowledge of Earley’s premises.
Prior to the jury being empanelled, the appellant made application to the Judge to exclude the second and third categories of evidence (to be referred to as “the impugned evidence”).
Unfortunately, counsel for the appellant did not apply for police witnesses to be called and there was therefore no cross-examination of them on the voir dire. Further, counsel appears to have conceded that there was no impropriety on the part of the police, thus making his task on the appeal much more difficult than it otherwise would have been.
After detailed submissions by defence and prosecution counsel, the Judge declined to exclude the impugned evidence. His Honour gave short reasons as follows:
This is an application to exclude two items of evidence, one flowing from the other. The facts relevant to this application can be stated shortly.
The accused is charged with an aggravated serious criminal trespass in a place of residence, aggravated assault and theft, all allegedly occurring on 5 November last year. It is alleged the accused was in company with two other men one of whom has been charged and already dealt with. The alleged victim did not claim to recognise the accused.
The challenged evidence is the alleged recognition of the accused on Facebook and the subsequent selection of the accused’s photograph from a photographic array produced by the police.
I will say a little more about the facts in a moment but in respect of the Facebook recognition it is submitted that the probative weight of the evidence is outweighed by the prejudice and possibly the unfairness to the accused.
As to the subsequent photographic array, it is submitted that the displacement effect of the earlier Facebook recognition should lead to the exclusion of the array.
I say a little bit more about the facts: the police investigation revealed that the palm print of the accused was found on the exterior of the laundry door of the house that was allegedly broken into. The police went to the alleged victim and asked him whether he knew a Ben Crawford because the palm print of a person of that name was found on the exterior of the laundry door. Although it is not submitted that the police acted improperly in providing that level of information it was submitted that the consequences were unfair to the accused and substantially weakened the evidence that flowed from it.
On 16 November last year the alleged victim, armed with that name, searched Facebook and found a number of men of that name. He then looked through the photographic profiles, fixing on, as I remember it, the first of them as being the man that broke into his house or was involved in the offending against him. He picked out this accused, as I say, as one of the offenders at his house on 5 November.
On 10 January this year the alleged victim was shown a photographic array that included the accused. The alleged victim selected the photograph of the accused saying he was 60-70% sure he was the third offender. He had particular regard on both Facebook and the photographic array to a jawline and skin colour of the person who he claimed to have recognised.
For the purposes of my ruling I have not had regard to the palm print evidence. In my view it is doubtful whether a court in this situation can have regard to the strength of the other evidence said to be available in the case.
Although there is prejudice to the accused and a weakening of the evidence against him, in my view the probative weight of the evidence outweighs other considerations. The weaknesses in the evidence in my view can be the subject of direction to alleviate unfairness and prejudice.
In my view both of the objections should be overruled and the evidence will be admitted.
The appellant has appealed against all of the convictions. On the hearing of the appeal, attention was focussed on the first ground of appeal which complained that the Judge “erred in admitting evidence of identification via Facebook and subsequently via Photo-Board” (“the impugned evidence”).
The material before the Judge on the voir dire application
When police attended at Earley’s home on 5 November 2013, Earley gave a detailed statement concerning the incident, including the descriptions of the three offenders reproduced above. He later signed four formal police statements on 17 November 2013, 17 November 2013,[20] 30 December 2013 and 1 December 2014. These statements were before the Judge and included the evidence that the prosecution proposed to lead from Earley at trial.
[20] There were two separate statements each dated 17 November 2013.
It is to be emphasised that there was no suggestion that any of the offenders wore a mask or disguise. It was plain to the police from the outset that Earley was the only witness, that the impugned evidence would be a critical part of any trial and that it was important that the integrity and quality of that potential evidence should be preserved.
Subsequent to 5 November 2013, police learnt that the palm print they had detected at the scene on 5 November 2013 matched the palm print of one Ben Crawford, the appellant. This development did not diminish the importance of the impugned evidence since the age of the print could not be determined and it was obvious that the appellant might well claim that it had been left there at some time prior to the occasion of the subject offending and/or dispute that it was in fact his palm print at all.
The police telephone call of 16 November 2013
A police officer telephoned Earley on 16 November 2013 (the police telephone call of 16 November 2013). In Earley’s second statement of 17 November 2013, he stated:
At about 10:40am on Saturday the 16th of November 2013, I was at my home address when I received a phone call from someone who identified themselves as the Police. I cannot remember the name of the person who spoke to me however I remember they sounded male.
The male person told me that they had identified some fingerprints which were taken from my home on the 5th of November 2013, when my house had been broken into while I was there and I had been assaulted. They asked me if they could tell me a name to find out if the person was a friend of mine. The name the person told me, was Ben CRAWFORD. I told the male on the other end of the phone that I do not know anyone by that name. I have never known anyone by that name.
It was common ground on the voir dire application that this telephone call was made because the police wished to know whether the appellant might have left his palm print in circumstances other than during the incident. It was obvious to police that an indication from Earley that he did not know any Ben Crawford would confirm the appellant as a strong suspect, since it would tend to rule out an innocent explanation for the palm print being left at scene; on the other hand, an indication from Earley that he did know Ben Crawford would tend to rule the appellant out as a suspect because Earley had clearly stated that he had seen all three offenders, that he did not know them and that he would recognise them again if he saw them.
The voir dire application was conducted on the basis that the police telephone call of 16 November 2013 had the effect of immediately conveying to Earley that the police believed that the person Ben Crawford was very likely one of the three offenders. This was, of course, confirmed by the fact that immediately after the telephone call, Earley searched for the name Ben Crawford on Facebook. Although unnecessary to the decision in this case, it is interesting to note that this was also confirmed by the more full evidence that he gave on the trial proper:
QAt some stage after this incident did police contact you to ask you if you knew anyone called Ben Crawford?
AYeah, just randomly had a phone call. They rang the house phone, answered it, they stated who they were, I didn’t take much notice. Said what police station they were from and then they just started asking me whether I knew or they said they had caught a couple of offenders and said ‘Look, can we run a name by you just so we can find out whether it’s a friend of yours?’
Q What was the name?
A They said ‘Ben Crawford. (Emphasis added)
A substantial error in police procedure
Any reasonably diligent police officer would have appreciated before making the police telephone call of 16 November 2013 that four things were very obvious.
First, it was very likely that Earley would say that he did not know any Ben Crawford because Earley had already told police that he had seen all three offenders and that he did not know any of them. A further reason was that it appeared to the police from the position where the palm print was located on the roller door that it was likely that it was left during the incident rather than innocently on a previous occasion.
Second, if police gave the name Ben Crawford to Earley, and it eventuated that that was not someone Earley knew, Earley would immediately realise that the police knew, or at least suspected, that Ben Crawford was one of the offenders.
Third, if any victim of a home invasion, such as Earley himself, became aware of the name of a person that the police knew, or at least suspected, was one of the offenders, it was highly likely that he would immediately check social media resources on the internet (to be referred to as social media) for photographs and information concerning that named person.
Fourth, if Earley did find photographs and information concerning that named person on the internet, the degradation or contamination of his potential identification evidence was highly likely.
Surprisingly, the name of the (male) officer who made the police telephone call of 16 November 2013 has never been disclosed to the appellant and no statement from that officer concerning that telephone call has ever been provided.
The South Australian Police Department, both through its own extensive use of social media for investigative and publicity purposes and its general dealings with the public, is well aware of the very high level of usage of social media by the public, and not least by persons in the age bracket of Earley. No police officer in this day and age can truthfully deny that a victim in Earley’s position was highly likely to search social media as a result of such information being conveyed to him by police.[21]
[21] In Strauss v Police (2013) 115 SASR 90, the pervasive influence of “Facebook” and similar internet sites that had been well established by 2010, the date of occurrence of the events in that case, was addressed. Such influence has dramatically increased since then.
It is interesting (although unnecessary to the decision in this case) to note that Earley himself clearly considered it to be entirely obvious that anyone in the position in which he had been placed would immediately resort to social media. In what might be called an emblematic passage of evidence, he stated:
Q At that time did you know anyone with the name Ben Crawford?
A No.
Q After being told the name, what did you do?
AObviously not knowing who this person was I logged into Facebook on the phone and typed in the person’s name. … (Emphasis added)
Alternatives to making the 16 November 2013 telephone call were available
Alternatives to making the police telephone call of 16 November 2013 were readily available. The situation was not a particularly difficult or burdensome one for the police and the contamination process could easily have been avoided. It simply required a little thought being given to the correct and fair procedure that should be adopted.
One very obvious alternative way in which the police could have proceeded was to invite Earley to participate in a photographic array procedure instead of making a phone call of the type that was made on 16 November 2013. If Earley did proceed to identify the appellant from a photograph of the appellant in that array, that is all well and good. If he failed to do so, the police would have complied with proper procedure and would have been free to follow up the palm print evidence which might still have led to a conviction.
The above course would have been the best course, but if there were some legitimate police objection to it, another obvious way in which the police could have proceeded was simply to ask Earley if he knew anyone named “Ben”. If he answered no, that would be equivalent to a denial of knowing a Ben Crawford and would have led to the conducting of a photographic array procedure.[22]
[22] If, on the other hand, Earley’s answer were to be yes, he could then have been asked for the surname(s), although the police would have correctly appreciated that it was unlikely that Earley would have then nominated Ben Crawford because he had already told police that he did not know any of the offenders.
Obviously, the adoption of this procedure would also have alerted Earley to the fact that the police believed, or suspected, that someone called “Ben” was one of the offenders. However, the risk of contamination of potential identification evidence would have been greatly diminished because it would have been completely impractical for Earley to search social media solely on the basis of the first name “Ben”.
However, in making the police telephone call of 16 November 2013, the police acted only in accordance with their own convenience, giving no thought to the likely degradation or contamination of critical identification evidence. This type of approach is unacceptable, especially so when a matter as problematic as the reliability of eye witness identification of a stranger is concerned.
The circumstances surrounding the Facebook search on 16 November 2013
During the Facebook search by Earley, some photographs of several men appeared on his screen. This process was described in Earley’s police statement signed on 1 December 2014 in the following passage:
After a conversation with a police officer who I can’t remember his name, about if I knew a male by the name of Ben CRAWFORD I decided to go onto my Facebook profile using my mobile phone application and search Ben CRAWFORD. I can’t remember how many profiles with that name came up on the results page but I had a quick look at the top five or six which had people’s faces on them.
I found one male which I recognised as being the third male that had entered my house on the 5th of November 2013. I recognised him due to his jaw line and skin colour. There were about three to ten photos of this male that I could see on his profile.
The first comment that must be made is a cautionary one. Earley’s police statement signed on 1 December 2014 was prepared, and its signing witnessed, by Constable Andrew Plumb. There is no audio recording of the statement taking process and one does not know the precise words that Earley used as distinct from the words Constable Plumb chose to use to summarise that conversation for the purposes of the police statement. This is an important distinction in this case, because in a related occasion to be dealt with immediately below (the photographic array procedure conducted by Plumb on 10 January 2014) it is demonstrated that Plumb’s purported summary in a police statement of what occurred during the photographic array procedure was seriously misleading. Therefore, although on 1 December 2014 Earley signed a typed statement prepared by Plumb in relation to a conversation between them on 28 November 2014 concerning Earley’s Facebook search on 16 November 2013, one must exercise caution as to the extent to which that written statement corresponds with the actual words used by Earley.
However, even taking the statement signed on 1 December 2014 at face value, the words “I recognised” in the third to last sentence must be interpreted and understood by reference to what immediately follows in the penultimate sentence: “I recognised him due to his jaw line and skin colour.”
It is to be remembered that the effect of the police telephone call of 16 November 2013 was to cause Earley to immediately search Facebook so as to locate the man to whom the police officer referred, one “Ben Crawford”. It is to be remembered that Earley had assessed all three offenders to be about 30 years old, each of them consorting with males of like age. Earley would have been predisposed to think that a male of that age might very well be on Facebook.
Taken as a whole, the probative value of such evidence was slight, amounting to little more than an assertion that the man (the appellant) depicted in “about three to ten” photographs had a similar jaw line and skin colour to those two physical features possessed by one of the offenders.
The prosecutor pressed the Judge with the submission that, “in a sense”, Earley picked the appellant from an array on Facebook:
… he’s searched the name Ben Crawford and in a sense he’s made a selection from an array. I accept we don’t have the other profiles or images of the photographs from the other profiles that he looked at but he clearly stated he didn’t just look at one and look at that and find ‘That’s the person’. He’s looked at a number before going back to the profile that he’s then clicked on and looked at a number of photographs. So even though it’s not something that’s been conducted in any sort of controlled environment, it is in one sense a selection from an array that has occurred.
There is of course a real possibility that a jury might adopt that very approach, but it is in fact an approach that is fraught with danger of miscarriage of justice. The assertion that Earley picked the photograph of the appellant from a group of five or six males has a seductive aura of substance about it but the problem is that the five or six males came to be together on Earley’s screen solely on the basis that they had the same name with nothing else in common at all. The chances are very high that they did not resemble each other or, more importantly, that they did not resemble the description of the offender given by Earley to police.[23] Indeed, in the present case there was not even any effort made by the prosecution to obtain and present the photographs of the other persons called “Ben Crawford” that Earley asserted that he saw on Facebook.[24]
[23] These matters are discussed in more detail below.
[24] This matter of failure to tender the Facebook photographs where it is asserted that they constituted something akin to an array is considered in Strauss v Police (2013) 115 SASR 90, 123.
In Strauss v Police, reference was made to some of the dangers inherent in Facebook investigations by victims of crime, including the following:[25]
[34]… Facebook has spawned a new generation of private investigators.
[35] … the process itself has very great problems in relation to the potential contamination of evidence necessary for a conviction in a court of law. Such problems are likely to arise when a victim of a crime, or a witness to it, searches Facebook looking for the offender using what information they have, or think they have, about the offender. … O’Floinn and Ormerod observe:[26]
Witnesses researching [social networking site (SNS)] photos of those suspected of offences is becoming commonplace. An emerging challenge when such evidence is revealed is that the witness’s initial SNS identification contaminated subsequent formal identifications.[27] McCullough[28] demonstrates the emerging problems. M was charged with robbery and evidence included M’s presence in the vicinity. However, proof of M’s involvement depended entirely on the identification by W. W had searched M’s Facebook account after a friend told him it “sounded like something like … [M] would do.” W identified M from the profile as the robber. W subsequently identified M in a video identification procedure. It was argued that the Facebook identification was “unsatisfactory and unreliable” and contaminated the subsequent procedure. In response, it was argued that the Facebook identification was no different to a street identification. With respect, there are considerable differences. With many SNS identifications a witness will be directed to search for a particular individual. Although it was claimed W “looked at a photograph of the appellant and also photographs of other individuals and groups of people”, there is clearly a danger of predetermination with SNS identifications. (Emphasis added; some footnotes omitted)
[36] So called “Facebook identifications” have none of the safeguards which accompany a properly executed formal identification procedure conducted by the police. Purported Facebook identifications from group photographs are particularly dangerous in that they present a seductive and deceptive air of being a plausible identification but in fact rarely involve a group of people each having similar features to the accused; they suffer from “foil bias” as discussed above. Consequently, if a suspect with similar features to the real offender is depicted in a photograph of a group whose other members lack those features, the suspect will likely be identified by a witness as the offender in the fervour of the superimposed “Facebook chat” and the pressure of the moment. The displacement effect will then later proceed to erase from the memory the subtle differences between the real offender and the person identified. …
[25] (2013) 115 SASR 90, 101-104.
[26] O’Floinn and Ormerod, “Social networking material as criminal evidence” [2012] Criminal Law Review 486, 500.
[27] R vH [2009] EWCA Crim 1453 at [34] and [37], and R vMcCullough [2011] EWCA Crim 1413 at [9]. See also, for example, Jenkins (John Joseph) v HM Advocat [2011] HCJAC 86, where A initially identified SPJ, having seen a photo of him on Bebo, but subsequently claimed this identification was flawed, and that the true perpetrator was JJJ.
[28] McCullough [2011] EWCA Crim 1413.
The circumstances surrounding the photographic array procedure
After the police had arrested the appellant on the basis that his palm print matched the palm print found at Earley’s home, the police invited Earley to take part in a photographic array procedure on 10 January 2014.
This, of course, was no more than what was required of the police in the circumstances. Despite the serious problems brought about by an operative displacement effect due to the Facebook search, there may still have been a chance that, when faced with a fair photographic array of ten photographs, Earley may have been unable to identify the appellant. Such a failure would have been an evidentiary consideration in favour of the appellant at a trial.[29]
[29] These matters are discussed in Strauss v Police (2013) 115 SASR 90 at 109-110.
To be clear, the mere fact that a photographic array procedure was held is not a positive factor militating in favour of an exercise of discretion to admit the impugned evidence since it is no more than what the police were obliged to do. Even if, first, the police had taken great pains to attempt to counteract a displacement effect engendered by the Facebook search and, second, Earley had proceeded to assert a clear and unequivocal identification of the appellant, such purported identification would still be very much subject to attack due to the real possibility that a displacement effect was causally operative.
However, what in fact occurred was that, first, the police took no real steps to attempt to counteract a displacement effect engendered by the Facebook search and second, Earley proceeded to assert anything but a clear and unequivocal identification of the appellant.
As at 10 January 2014, the police were well aware that Earley had undergone the Facebook search and that Earley was of the view that he had recognised the appellant “due to his jaw line and skin colour”.
For a proper photographic array procedure, a good description of the suspect must first be taken by police from the witness and then the foils (say 11 in number) must be carefully selected so as to fairly match that description. Dangers associated with identification procedures must be recognised and guarded against.
In Strauss v Police,[30] the need for the foils to match the description of the offender is addressed under the heading “Foil bias” but a concrete example would have made the discussion clearer. To take such an example, if a witness states that the offender was Caucasian, about 30 years of age, 5’10” tall, of slim build, clean shaven and having blue eyes (and the suspect fit that description), an array that included nine foils, each of whom might fairly be described as Caucasian, about 30 years of age, 5’10” tall, of slim build and clean shaven might, on superficial inspection, appear to be a fair array. However, if none of those nine foils has blue eyes, the array might in fact be quite unfair in circumstances where the witness had particularly noticed that feature of the offender and would be looking for it in each of the 12 people in the array. If only the suspect has that feature, then quite literally he is the only one that can be selected by the witness, and very likely he will be selected, by dint of a process of elimination.
[30] (2013) 115 SASR 90 at 101.
In the present case, just such a problem had materialised. Due to a chain of events caused by the police telephone call of 16 November 2013, Earley had in effect been presented with photographs of the appellant on Facebook for his consideration. In asserting recognition of the man in those photographs (the appellant) as the offender, Earley placed emphasis on what he called “his jaw line and skin colour”, features that equated to blue eyes in the example given above.
It is obvious that during the photographic array procedure Earley sought to match the features “his jaw line and skin colour” with a photograph in the array. Indeed, in his later statement signed on 1 December 2014 concerning that photographic array procedure, Earley stated:
When I conducted the photo identification process with a police officer in January this year I picked photo 10 as being the third male who entered my house. I was about 60 to 70 percentage sure on the day that that was the third male. I recognised the males jaw line and skin colour to be the same as the third male. (Emphasis added)
There is no indication that Constable Plumb, the officer who organised and conducted the array, took any care to include foils with a similar jaw line and skin colour to that of the appellant in the photographic array. But the more stark matter emerges on a careful consideration of the way that the photographic array procedure was conducted, including the observed demeanour of Earley and the precise words he used.
Plumb in his sworn statement signed on 31 March 2014 stated:
At about 7:05pm on Friday 10th January 2014 Constables DAWSON and I attended the home address of the victim in a Serious Criminal Trespass matter, Peter EARLEY. I had a conversation with EARLEY in regards to conducting a photographic identification procedure for the two males who had been arrested for the offence.
Plumb first conducted a procedure in relation to one of the other two accused persons and then conducted the procedure in relation to the appellant. He stated in his sworn statement signed on 31 March 2014 that this procedure proceeded as follows (the emboldened portion represents the activity and statements of Earley after he had been handed the folder):
I said,“As you are aware, my name is Andrew Plumb and I am a Police Officer from Elizabeth Criminal Investigation Branch, I am investigating an offence/s of Aggravated Serious Criminal Trespass, Aggravated Assault and Theft which occurred at about 4.00pm on the 5th of November 2013 at 8 Phillip Avenue Craigmore. I am about to hand you a folder that contains a number of photographs. Prior to looking at the photographs there are a number of important points to this procedure that you must understand. Firstly, a photograph of the persons involved in the incident under investigation may or may not be in this folder. Do you understand?”
He said, ‘Yep”
I said,“Viewing the photographs in this folder does not mean that you are obliged to make a selection. Do you understand?”
He said, “Yep”
I said,“Neither I nor any other person are able to assist you in any way to make your selection. Once I have handed this folder to you, I will not speak to you again until such time as you have indicated one of the photographs or tell me that you are unable to recognise any of the people shown in the photographs. Do you understand?”
He said, “Ok”
I said,“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. If you do, would you point to the photograph of that person and state the number of the photograph in a loud clear voice, do you understand?”
He said, ‘Yep”
I said, “Do you have any questions before I hand you this folder?”
He said, “No, like the other one have a look”
I gave the folder of photographs to EARLEY.
He looked at the folder for about 30 seconds and he pointed to number ten.
He said, “I’m thinking ten, its defiantly (sic definitely) none of the other guys”
I said, “You have indicated photograph number 10 as being the person involved in the matter under investigation. I would now ask you to sign, date and time the back of the photograph”
EARLEY signed his name and date on the back of the photo. The video camera was then deactivated. (Emphasis added)
However (fortunately for the appellant), the photographic array procedure on 10 January 2014 was visually and aurally recorded and an agreed transcript has been placed before this Court. The emboldened short portion of Plumb’s police statement immediately above may be contrasted with the actual recording of the corresponding passage which appears thus in the agreed transcript:
W: (looks over all three pages of the folder containing photographs)
(Time elapsed: 14 seconds until response)
W: Um I’m thinking number 10
W: But I’m not one hundred percent sure
W: It’s definitely none of these other guys
W:(Continues to look at photographs, looks to be uneasy and fidgets a lot with one hand, taps fingers on table and puts hand to head and taps head with knuckles)
(Time elapsed: 32 seconds until response)
W: Um errrr I’m going to say 10
P1 Q: 10?
W A: Yer
W: (looks over photographs again quickly)
P1: ok
P2 Q: can you give us any reason why you believe its 10?
W A: Just the facial figures
W: But the guy he looks like he’s been in a fight and the picture isn’t that clear
W: Just the … Just the facial figures
P2: mmhmm
W: definitely
P2: Yep
W: can’t see any of these guys [to be read “definitely can’t see any of these guys”]
W: (Glances at Photographs)
(Time Elapsed: 4 seconds till response)
W:Yep I’m thinking I’m going to say 10, but I don’t want to get anyone in trouble if it’s not
P1: nah it’s all good
P1:alright so you’ve indicated photo number 10 as being the person involved in the matter under investigation
P1: I would now ask you to sign and date and time at the back of the photograph
[Underlining added; emphasis added]
The emboldened passage in Plumb’s statement reproduced above purports to be what was said verbatim during that photographic array procedure but, as can clearly be seen from the agreed transcript, there is a marked difference, in both tone and content, between that emboldened passage and what was actually said. Plumb’s own sworn statement signed on 31 March 2014 is, at the very minimum, seriously misleading.
Suggestibility - a subconscious bias to select a photograph
The agreed transcript (in contrast to Plumb’s purported summary) makes it clear that the degree of susceptibility of Earley to subconscious pressure to choose one of the photographs in the array was particularly high due to the police telephone call of 16 November 2013. The reading of the pro forma words at the beginning of the photographic array procedure “a photograph of the persons involved in the incident under investigation may or may not be in this folder” was little more than a charade, and in the present circumstances would have been perceived as such. Thus the Court (consisting of Deane, Toohey and McHugh JJ) stated in Pitkin v The Queen:[31]
Another such danger is that a witness who is shown photographs by investigating police will ordinarily be desirous of assisting the police and will be likely to assume that the photographs shown to her by the police are photographs of likely offenders. In that context, and in an environment where the ultimate accused will necessarily be absent and unrepresented, there may be subconscious pressure upon the witness to pick out any photograph of a “suspect” who “looks like” the offender notwithstanding that the witness cannot, and does not purport to, positively identify the subject of the photograph as the offender.
[31] (1995) 69 ALJR 612, 615.
In similar vein, in Strauss v Police, it was noted:[32]
[26] It is well understood that the retrieval process may be affected by what may be referred to as “context cues”.[33] For example, in the case of the traditional physical line-up or photographic array, most witnesses will realise that if the police have gone to the trouble of assembling such a procedure, they must have a suspect in mind and will try hard to find a match between their memory and the persons or photographs presented to them. There is therefore a real risk that a photograph array will become a “multiple-choice test”, the witnesses choosing the one that most resembles their recollection of the criminal.
[32] (2013) 115 SASR 90, 100.
[33] Deutscher and Leonoff, Identification Evidence (Carswell Publications, 1991) 16; Cutler and Penrod, Mistaken Identification: The Eyewitness, Psychology, and The Law (Cambridge University Press, 1995) 113.
The displacement effect
There is a real risk that identification evidence will be irretrievably contaminated through social media searching in a number of ways. One of the most obvious ways is the displacement effect which has been well known in legal and police circles for many years. A concise description of the “displacement” effect was given in 1981 by Stephen J in Alexander v The Queen:[34]
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.
[34] (1981) 145 CLR 395, 409.
In Pitkin v The Queen, the Court stated:[35]
… once there has been purported identification through a photograph, any subsequent direct identification may be less reliable by reason of the subconscious effect of the photograph upon the witness's recollection of the actual appearance of the offender.
[35] (1995) 69 ALJR 612, 615.
And in Strauss v Police, it was noted:[36]
[30] The displacement effect may occur in a variety of circumstances but the courts have most often addressed the displacement effect in the context of stressing that a “memory [of a person’s features may be] altered by later experiences such as the perusal of photographs or identikit pictures”, reading descriptions of the suspect or other persons or viewing newspaper sketches of the suspect.[37] It is well recognised that after a photographic identification process, the witness’ recollection of the culprit and recollection of the photograph are likely to be so merged that the two can no longer be separated.[38] …
[36] (2013) 115 SASR 90, 101-104.
[37] Heydon, “Evidence of Identification: The Law” (1982) 14(4) Australian Journal of Forensic Sciences 134, 138.
[38] Deutscher & Leonoff, Identification Evidence (1991, Carswell Publications) 28-31.
The admitted poor quality of the photographic array procedure “identification”
In Pitkin v The Queen the facts are summarised by the plurality as follows:[39]
About half an hour after the incident, Ms Vella was shown a number of photographs by police at Mt Druitt Police Station. She picked out three photographs of the appellant. Those photographs had been taken on three different dates, the closest being some three and a half months before the date of the alleged offences. Ms Vella’s evidence was that, when she picked them out, she said: “This looks like the person that I seen take the lady’s handbag.” A police witness who gave evidence of Ms Vella’s selection of the three photographs said that he “didn’t record” what Ms Vella had said but that it “could have been something like”: “This looks like the person that I seen.”
[39] (1995) 69 ALJR 612, 613.
In Pitkin, the defence submitted that an assertion that a photograph of the accused “looks like” the offender fell substantially short of a positive identification that the accused is the offender. The Court, after referring to a number of the dangers presented by the use of photographic identification procedures,[40] stated:
In the context of the above danger of prejudice to an accused in prosecution evidence of identification by a witness’s earlier selection of a photograph or photographs, ordinary considerations of fairness dictate that any such evidence be subjected to careful scrutiny before it is accepted as constituting evidence of positive identification. If words which are reasonably capable of being understood as consistent with an absence of positive identification are used without further explanation or elucidation, there is no question of impugning the language of the witness in denying the independent efficacy of the words as positive identification. All that is involved in such a denial is the application of the fundamental principle that proof of guilt must be beyond reasonable doubt. …
In the present case, the words used by Ms Vella in selecting the three photographs did not, as a matter of literal meaning, amount to positive identification. They were plainly consistent with an intention by Ms Vella to indicate nothing more than that the person depicted in the three photographs looked like the offender whom she had seen. It may well be, as Levine J speculated, that Ms Vella did intend to convey, by the words that she used, that the person depicted in the photographs actually was the offender. It may also well be, as Hunt CJ at Common Law suggested in his judgment, that the phrase “that looks like” was used in a colloquial sense by Ms Vella and was “certainly capable in [the] circumstances of asserting an identification of the appellant”. 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. …
[40] As well as passages extracted elsewhere herein, their Honours stated: “One such danger is that identification through a photograph is likely to be less reliable than direct personal identification since differences in appearance between the offender and a suspect may be less noticeable when a photograph of the suspect is used. In that regard, once there has been purported identification through a photograph, any subsequent direct identification may be less reliable by reason of the subconscious effect of the photograph upon the witness’s recollection of the actual appearance of the offender.”
In the present case, it was not even suggested that the photographic array procedure resulted in a positive identification. In his statement signed on 1 December 2014, Earley stated:
When I conducted the photo identification process with a police officer in January this year I picked photo 10 as being the third male who entered my house. I was about 60 to 70 percentage sure on the day that that was the third male. I recognised the males jaw line and skin colour to be the same as the third male. (Emphasis added)
Thus we have evidence of a purported self-assessment by Earley that on the day of the photographic array procedure his level of belief that photograph ten (the appellant) was the third male was “about 60 to 70 percentage sure”. How that assertion of an approximate percentage level of belief could be satisfactorily explained to a jury would constitute a difficult question in itself. However, here the matter is greatly complicated by the fact that, unknown to Earley, his assessment of his level of belief was very likely significantly inflated in favour of the proposition that photograph ten was the third male by the cumulative effect of the police telephone call of 16 November 2013 and the supervening displacement effect caused by Earley’s finding of the photographs of the appellant during the Facebook search.
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 percentage sure”?
In my view, the combined probative weight, if any, of the evidence of the Facebook search on 16 November 2013 and of the photographic array procedure on 10 January 2014 was greatly outweighed by its unfair prejudicial effect upon the trial of the appellant.
Discretionary exclusion of identification evidence
I would also, independently of the general unfairness discretion, exercise both the Christie discretion and the public policy discretion so as to exclude that same evidence.
I therefore consider that ground 1 of appeal is made out. There can be no question of the application of the proviso here. As to ground 2 of appeal which asserts that the verdict is unreasonable, having considered the whole of the evidence in the way required by the decision of the High Court in M v The Queen,[75] I conclude that this ground is not made out.
[75] (1994) 181 CLR 487.
I would therefore allow the appeal on the basis of ground 1 of appeal only. I consider that it is appropriate to order a re-trial rather than enter a verdict and judgment of acquittal.
Since writing the above, the decision of the High Court in Police v Dunstall,[76] has been delivered. The judgments in Dunstall are heavily reliant upon the scheme of the Road Traffic Act 1961 and on the fact that what was there under consideration was a loss of potential evidence which may, or may not, have been exculpatory and which loss was in any event not attributable to police conduct. I consider that what I have written above demonstrates that the present case dealing with police conduct in relation to identification evidence is very different and is unaffected by the judgments of the plurality and Nettle J in Dunstall.
[76] [2015] HCA 26.
NICHOLSON J. I have had the advantage of reading Peek J’s judgment in draft, in particular, his Honour’s description of the facts and analysis of the investigatory process leading to the trial. As such, I am relieved of the need to deal with those matters again. I also have had the advantage of his Honour’s comprehensive discussion of the ambit of the public policy and general unfairness discretions. I agree, substantially for the reasons his Honour has given, that the probative value of the Facebook “identification” and the police photo board “identification”,[77] either each considered alone or when taken together, is slight.
[77] In each case, the complainant’s evidence was not true identification evidence. It was an item of circumstantial evidence to the effect that the perpetrator looked like the person chosen and had particular features similar to those of the person chosen, namely, jawline and skin colour.
Nevertheless, I take a different view as to ground one of the appeal, that is, whether the complainant’s evidence concerning and as a result of the two identification procedures was properly admitted.
I agree that by providing the complainant with the full name of the appellant, in circumstances that strongly implied he was under suspicion and asking whether the complainant knew such a person, the police committed an error of judgment. As Peek J has pointed out, there were alternatives to this act of disclosure available, one of which should have been adopted in the circumstances.[78] It was an error of judgment that was very likely to encourage the complainant to conduct his own social media investigation in an uncontrolled manner. Once the complainant did this, both the Facebook identification process and any subsequent formal police identification process, inevitably would be compromised as to probative value and as to the potential to cause prejudice to the appellant.
[78] The appellant’s complaint on the voir dire concerned not the disclosure itself but the failure of the police to warn the appellant not to conduct his own investigations. This was a further alternative approach. However, this still carried with it an unwarranted risk. I agree with Peek J that the disclosure should not have been made at all.
The police had little, if anything, to gain and much to lose by asking this question. They had the palm print evidence. Even if, although unlikely, the complainant had provided a yes answer such that their suspicion of the appellant may have been lessened, they most likely would have proceeded with a formal identification exercise by way of a parade of persons or a photo board. If, as was to be expected for the reasons given by Peek J, the answer was no, they would have had all the more reason to proceed with a formal identification exercise.
However, it was readily foreseeable that if, as expected, the complainant did not know a person by the name of Ben Crawford he would straight away investigate through social media. The risk of this was exacerbated by the failure of the police to request the complainant, in strong terms, to refrain from doing this.
I have described the police conduct here as an error of judgment. I put it no higher, although it certainly had very unfortunate consequences. The argument on the voir dire before the Judge was conducted “on the papers”. The police conduct and, in particular, any evidentiary basis for drawing conclusions about their intentions or expectations was not canvassed in any detail during the argument on the voir dire or before this Court. Indeed, counsel for the appellant at the voir dire[79] conceded that the police did not deliberately engage in improper conduct.
[79] Who was not counsel at the appeal.
During the voir dire counsel for the appellant identified three potentially available bases for the discretionary exclusion of the Facebook and photo board identification evidence.
The first was described as the discretion to exclude where prejudicial value exceeds probative value and counsel referred to this as the “Christie discretion”.[80] In R v Christie, Lord Moulton and Lord Reading both referred to a rule of practice. Lord Moulton[81] described this rule of practice as the common adoption by prosecuting counsel of a (reasonable) intimation from the bench that evidence ought not be pressed where, although admissible, it would probably have a prejudicial influence on the minds of the jury which would be out of proportion to its true evidential value. Lord Reading, in describing the same rule of practice,[82] identified as its subject evidence which, although admissible in law, has little value in its direct bearing on the case, and might indirectly operate seriously to the prejudice of the accused.
[80] R v Christie [1914] AC 545. In R v Lobban (2000) 77 SASR 24; [2000] SASC 48 at [89], Martin J (with whose reasons Doyle CJ and Bleby J agreed) indicated a preference for seeing the so called Christie discretion, based upon a comparison of probative and prejudicial values, as being an example of the application of what his Honour described as the general unfairness discretion (see further below).
[81] R v Christie [1914] AC 545 at 559.
[82] R v Christie [1914] AC 545 at 564.
In Alexander v The Queen[83] Gibbs CJ referred to the discretion in a trial Judge to exclude any evidence if the strict rules of admissibility operate unfairly against the accused. Arguably, his Honour set the exclusionary bar with respect to the Christie manifestation of this discretion a little higher than did Lords Moulton and Reading.
It would be right to exercise that discretion in any case in which the Judge was of the opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused. (Emphasis supplied.)
[83] (1981) 145 CLR 395 at 402-43.
The second potential basis for exclusion, identified by counsel on the voir dire, was the Bunning v Cross[84] public policy discretion. However, counsel did not press before the Judge any submission of impropriety by the police and contended only that there was a “lack of foresight” by the police. Counsel expressly eschewed any claim of “impropriety deliberately occurring by the police”. Counsel’s criticism of the police focussed on the fact that, having provided the name of the suspect to the complainant, the police did not give a warning to the complainant not to undertake his own investigations but to leave it to the police to investigate.
[84] (1978) 141 CLR 54.
The third discretion identified by counsel was “the fairness to the accused discretion” which I take to refer to the general unfairness discretion as now understood following the analysis of Martin J in R v Lobban.[85] Here the ultimate question before the Court is, in essence, whether or not an accused will receive a fair trial in the event that the impugned evidence were to be admitted.
[85] (2000) 77 SASR 24; [2000] SASC 48. In Police v Dunstall [2015] HCA 26 the plurality in the High Court considered the application of this general unfairness discretion. However, they were not required to and did not determine the correctness or otherwise of the Martin J analysis. Whilst a concern as to its correctness might be inferred from some observations in the plurality judgment, Lobban remains binding on courts in this State.
Counsel’s submissions on the voir dire focussed on the question of whether or not the evidence was more prejudicial than probative and the issue of general unfairness to the accused. Whilst the public policy discretion was not pressed, counsel did maintain that the unfortunate but inadvertent behaviour of the police was still a factor to be taken into account.
An out of court identification, including that arrived at after an inspection of photographs, is admissible evidence.[86] 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.[87] 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.[88]
[86] See generally Alexander v The Queen (1981) 145 CLR 395 at 400; R v Deering (1986) 43 SASR 252 at 253.
[87] Alexander v The Queen (1981) 145 CLR 395 at 399.
[88] 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].
There is a discretion to exclude identification evidence where its admission would be unfair to an accused or where, in the interests of wider public policy, the Court takes the view that it is proper to exclude the evidence because of impropriety in the procedure by which the evidence has been obtained.[89] In R v Lobban[90] Martin J (with whose reasons Doyle CJ and Bleby J agreed) explored at some length the history of and the presently applicable formulation of both these discretions.
[89] See, for example, R v Deering (1986) 43 SASR 252 at 253; R v Lobban (2000) 77 SASR 24; [2000] SASC 24; and the authorities dealing with both the public policy and the general unfairness discretion discussed at some length in the judgment of Peek J.
[90] (2000) 77 SASR 24; [2000] SASC 48.
As far as the public policy discretion is concerned, his Honour said this.[91]
In my opinion, however, the history of the public policy discretion has been centred upon the discretion being enlivened only when the evidence is obtained by unlawful, improper or unfair conduct on the part of law enforcement authorities. In identifying the rationale for the existence of the discretion, the High Court and other authorities have emphasised the importance of preventing the courts from being “demeaned” by the use of the “fruits of illegality” or being used “to effectuate the illegal stratagems of law enforcement agents or persons acting on their behalf”. The focus is thus upon bringing the administration of criminal justice into disrepute through the use of the courts in this manner. The courts have not undertaken the role of supervising the conduct of law enforcement authorities generally in circumstances divorced from any attempt by those authorities to use the courts to further the aims of their unlawful, improper or unfair conduct.
[91] At [40].
In my view, the evidentiary foundation before the Judge was not sufficient to support a finding that the Facebook identification evidence or the photo board identification evidence was obtained by “unlawful” or “improper” conduct. However, I will accept for present purposes, without deciding, that the evidence came about through “unfair conduct” on the part of the police. Even so, I am not satisfied on the available evidence that the police concerned were aware of this, that is, recognised that their conduct in revealing the name of the suspect might lead to the potentially unfair consequences now identified. To be clear, whilst I am satisfied that the police should have foreseen that the complainant would search social media, there is no evidence that they intended this to occur or that they did so deliberately in order to achieve an unfair or improper advantage. I am not satisfied that the police acted deliberately unfairly rather than inadvertently unfairly.
As such, I am not satisfied on the evidence available that the underlying rationale for the public policy discretion to exclude is engaged in this matter. This is not a case where the court risks being “demeaned” by the use of “the fruits of illegality” or of the court being used to “effectuate the illegal stratagems of law enforcement agents or persons acting on their behalf”. This is not a case, on the evidence, of the police attempting to use the court to further aims of unlawful, improper or unfair conduct.
If I were to exercise the discretion: given that the error of judgment, albeit a serious one, is to be regarded as inadvertent and not deliberate, in the sense I have endeavoured to explain; and given my view on the unfairness question (discussed below), I would not exclude the evidence in question on the basis of the public policy discretion.
The Judge was not asked to exercise the public policy discretion and did not expressly refer to it in the brief reasons he gave for refusing to exclude the evidence. However, for the reasons just expressed, his Honour did not err in failing to exclude on this basis.
I turn to the question whether or not the evidence should have been excluded on the basis of either the Christie discretion or the general unfairness discretion, as pressed by trial counsel. In R v Lobban and as part of his analysis of the general unfairness discretion, applicable to all evidence including non-confessional evidence, Martin J said this.[92]
Bearing in mind the statements in the authorities to which I have referred, in my opinion a discretion exists to exclude non-confessional evidence on the ground that to receive it would be unfair to an accused in the sense that the trial would be unfair. The existence of the discretion is not dependent upon the conduct of law enforcement authorities. An accused person is entitled to a fair trial and it is the duty of the court to attempt to ensure that the trial is fair: (see Barton v The Queen (1980) 147 CLR 75, Jago v District Court (NSW) (1989) 168 CLR 23 and Dietrich). The existence of this discretion is inherent in that duty of the court. For ease of reference I will refer to this discretion as the "general unfairness discretion".
[92] At [77].
After dealing, briefly, with the application of the general unfairness discretion to areas in which special bodies of law already exist in connection with the admissibility of and discretionary exclusion of particular types of evidence,[93] his Honour made the following further observations.[94]
The warning in Rozenes v Beljajev concerning the need to avoid usurping the function of the jury should be heeded. In addition, as Gaudron J observed in Dietrich in the passage to which I have referred, the inherent powers used to serve the purpose of achieving a fair trial "do not permit of idiosyncratic notions of what is fair and just." Nevertheless, for these purposes the concept of fairness to an accused is a broad one and the remarks of the majority in Swaffield, although made in the context of the unfairness discretion concerned with confessional evidence, are equally applicable to the operation of the general unfairness discretion. The purpose of both discretions includes the protection of "the rights and privileges of the accused", which rights "include procedural rights" (at 189 and 197). Both discretions look "to the risk that an accused may be improperly convicted" (at 189). 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 exclusion of the evidence. In those circumstances the admission of the evidence would result in an unfair trial. In determining whether such a perceptible risk cannot adequately be dealt with by appropriate directions, however, the capacity of juries to understand, appreciate and apply directions should not be underestimated. In circumstances where the admission of the evidence would cause unfairness, but not to the extent of creating a perceptible risk of miscarriage of justice or a perceptible risk that could not be adequately avoided by directions, the nature and extent of the unfairness will need to be assessed as will matters such as the probative and prejudicial value of the evidence and its importance to the prosecution case. The court may need to weigh factors such as those that are considered in the context of the public policy discretion. In this way, the type of circumstances that existed in French v Scarman are encompassed within the general unfairness discretion. The factors to be weighed may well include the conduct of the law enforcement authorities and whether that conduct has contributed to the unfairness. For example, if the conduct of the authorities occurred with a view to placing an accused at a forensic disadvantage, and a disadvantage ensued, such conduct and the existence of the disadvantage would be highly relevant in determining whether the evidence should be excluded. This approach is consistent with the view taken by the Court of Appeal in Callis v Gunn [1964] 1 QB 495. In a judgment with which the other members of the Court agreed, Lord Parker CJ said (at 501):
"[A]s is well known, in every criminal case a judge has a discretion to disallow evidence, even if in law relevant and therefore admissible, if admissibility would operate unfairly against a defendant. I would add that in considering whether admissibility would operate unfairly against a defendant one would certainly consider whether it had been obtained in an oppressive manner by force or against the wishes of an accused person. That is the general principle."
[93] Such as the principles concerned with evidence of bad character and evidence given by accomplices and indemnified witnesses.
[94] At [82].
The Victorian Court of Criminal Appeal in Dupas v R[95] has provided a helpful description of the process to be adopted at common law when consideration is being given to a risk that the jury would attach undue weight to impugned evidence.
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.
[95] [2012] VSCA 328; (2012) 40 VR 182 at [141]-[142] (The Court: Warren CJ, Maxwell P, Nettle, Redlich and Bongiorno JJA).
Before considering the potential application in this matter of the general unfairness discretion and, on the facts of this case, the Christie discretion as being implicit therein[96] it will be helpful to identify the nature of the Crown and defence cases.
[96] Cf; R v Lobban (2000) 77 SASR 24; [2000] SASC 48 at [89].
The Crown relied on the following matters as comprising its circumstantial evidence case to prove the appellant’s guilt beyond reasonable doubt:
(i)the description of the third man (said to be the appellant) given by the complainant in evidence before the jury;
(ii)the complainant’s evidence of the process he undertook and the conclusions he arrived at following the Facebook and photo board procedures against the background of the limitations apparent on the face of that evidence and, in part, conceded by the complainant;
(iii) the palm print evidence;
(iv)the complainant’s evidence before the jury to the effect that he was not a drug dealer and that he had never seen the appellant prior to the occasion in question;
(v)the police search of the complainant’s premises during which they located no drug related evidence, relied on as corroborating the complainant’s evidence that he had no involvement in selling drugs and therefore had no opportunity to have seen the appellant before the offending; and
(vi)the appellant’s esoteric knowledge of the complainant’s premises, provided to the police during his record of interview, including the fact that upon visiting the complainant’s premises one approached the house through the roller door and then through a door immediately to the right (being the door on which the appellant’s palm print was found).[97]
[97] On the defence case, the appellant was aware of this because he had visited on earlier occasions to purchase cannabis. On the Crown case, the appellant only acquired this knowledge as a result of attending on the day of the offending.
The defence case was directed at identifying circumstances giving rise to a reasonable possibility that the appellant’s palm print had been left on the door in innocent circumstances and that he had acquired his knowledge of the complainant’s premises in innocent circumstances. The appellant gave evidence to the effect that he recognised the complainant because he had previously purchased cannabis from him at the complainant’s house. As such, and whilst he had no specific recollection of touching the door where the palm print was located, his presence at the house on earlier occasions to purchase cannabis explained how his palm print came to be on the door and also his knowledge of how to access the premises.
The appellant could not remember where he was on the day of the offending (Melbourne Cup day); he had been drinking but could not remember with whom. However, his mother gave evidence that the appellant had spent Melbourne Cup day with her at the home of another son.
The jury was properly directed by the Judge about the appellant’s failure to comply with the rules regulating the adducing of alibi evidence. Notice of the mother’s alibi evidence had only been given to the Director of Public Prosecutions in late November 2014, about a week or so before the trial, whereas section 285C of the Criminal Law Consolidation Act 1935 requires that any such notice must be provided to the prosecution within seven days after the case is sent to trial, which in this case was April 2014. The explanation given by the defence for the lateness of the alibi notice was that the appellant had no memory of what he had been doing on Melbourne Cup day other than that he had been drinking and that his mother did not come to learn of the date of the alleged offending until very late in the piece. It was only then that she was able to provide the defence with her information about what had happened on Melbourne Cup day. The jury could be forgiven had they found the alibi evidence less than persuasive.
The combined prosecution and defence cases gave rise to three alternative possibilities.
(i)The first possibility is that the appellant was innocent of the crimes and only ever purchased cannabis from the complainant. It was through this activity that he became familiar with the house and left his palm print. This was the defence case.
(ii)The second possibility is that the appellant was guilty of the crimes but had never been at the complainant’s house other than on the occasion of the home invasion. It was on the occasion of this one visit that the appellant obtained the esoteric knowledge and left the palm print. This was the prosecution case.
(iii)The third possibility, available to the jury, and one that would also lead to a finding of guilty, arises from an amalgam of the prosecution and the defence positions. The appellant had visited the complainant in the past in order to purchase cannabis and, as such, may have left the palm print and acquired the esoteric knowledge in innocent circumstances.[98] However, it was the appellant who also attended, as the third man described by the complainant, on the occasion of and in order to commit the crimes. Two aspects of the evidence before the jury might be seen as lending support to this third, amalgam, explanation: the fact that the appellant volunteered to police during his record of interview that his drug dealer appeared to have a lot of money; and, the fact that the third person described by the complainant (and said to be the appellant) shouted upon entry “Where’s the money at?”
[98] This would involve a rejection of the complainant’s evidence on this issue.
Clearly the jury rejected possibility (i) and, it would appear, adopted either possibility (ii) or possibility (iii).
Of course, possibility (iii) has embedded in it a potentially innocent explanation for the presence of the palm print and the esoteric knowledge. As such, if possibility (iii) rather than possibility (ii) had been the jury’s path of reasoning to guilt, the strands of the prosecution circumstantial case comprising the Facebook and the photo board identification evidence would have to have assumed greater weight.
If the jury had adopted possibility (ii), that is, rejected the appellant’s evidence that he had been there on prior occasions and accepted, beyond reasonable doubt, the complainant’s evidence that he had never seen the appellant before, the evidence of the palm print would likely be conclusive in the minds of the jury as to the appellant’s guilt.
Nevertheless, possibility (iii) was an available path of reasoning and as such, the Judge’s directions concerning the nature of the Crown case as being a circumstantial evidence case and, in particular, as to the proper use of the identification evidence in that context, including as to its slight or limited probative value and as to its lack of reliability inherent in the procedures adopted, would assume great importance.
The Judge’s directions in these respects were extensive,[99] comprehensive and quite favourable to the appellant. They identified the limited weight that the evidence could properly bear and a number of important unreliable and potentially prejudicial aspects of the evidence. No criticism of the Judge’s directions has been made in these respects.
[99] They occupied four to five pages of the appeal book.
Peek J has outlined a number of criticisms of the evidence of Facebook and photo board “identifications” with the substance of which I agree. However, a review of the Judge’s directions satisfies me that his Honour was alive to these insofar as relevant to this case. This was not a case where the admission of evidence created “a perceptible risk of a miscarriage of justice that [could not] adequately be dealt with by appropriate directions to the jury”.[100] This was a position open to and adopted by the Judge. In my view, the Judge’s directions on this topic did remove any risk of a miscarriage of justice in this respect.
[100] R vLobban (2000) 77 SASR 24; [2000] SASC 48 at [82].
However, there is another element of potential unfairness that has been visited on the appellant, over and above any problems with the “identification” evidence, in fact, relied on by the Crown. Because of the error of judgment by the police, the appellant has likely been deprived of evidence that would have been obtained from a more rigorously conducted identification procedure, that is, a properly conducted photo board procedure without the distraction of the preceding Facebook investigation. This cannot now take place and could not, once the police provided the name to the complainant and the complainant conducted his Facebook search of that name.
A properly conducted identification procedure and one performed with the complainant being ignorant of the name of the suspect may have resulted in evidence from the complainant: of a circumstantial nature similar to that in fact obtained and with the same, greater or lesser probative value; or of an actual identification (not “looks like” but “that is the man”); or of a complete failure, by the complainant, to choose anyone at all as either looking like or being the perpetrator.
If the last type of evidence, tantamount to an exclusion of the appellant as the culprit according to the complainant’s memory at the time of the procedure, had been obtained and adduced, the defence case would have been strengthened.
The contention at this point would be that there has been an unfair trial because of the appellant’s loss of opportunity to obtain evidence that may, but not necessarily would, have assisted him. It is true that this loss of opportunity arose through no fault of the appellant but rather as a result of the police conduct. However, the question whether it was unfair for the appellant to have been deprived of a different trial, does not engage either the public policy or the general unfairness discretion to exclude evidence.
This potential for unfairness, now under consideration, will not be remedied by the exclusion of the evidence that was, in fact, obtained. For the reasons given earlier, I am not satisfied that the trial, as in fact conducted, was an unfair trial; the “identification” evidence was admissible and when considered in the context of the directions available to be given, and in fact given, gave rise to no perceptible risk of a miscarriage of justice. The fact that the appellant might (and it can never be known) have been afforded a different fair trial does not necessarily render the fair trial he did receive unfair.
The potential consequences of having been deprived of a different fair trial, apart from the exclusion of the identification evidence,[101] were not argued at the trial or on appeal and do not need to be considered further.
[101] Such as the power to stay proceedings for an abuse of process, see, for example, the discussion by the Chief Justice in Police v Dunstall (2014) 120 SASR 88; [2014] SASCFC 85 at [17]-[18] and very recently, by the plurality in Police v Dunstall [2015] HCA 26, particularly at [47]-[48].
In my view, the Judge was entitled to exercise the available discretion(s) in favour of admitting the complainant’s evidence concerning the Facebook procedure and the police photo board procedure. The evidence, taken together, did have probative value, albeit slight for the many reasons given by Peek J and as identified in the Judge’s summing up. However, it could not be said that this evidence, taken as a whole, had no probative value. Its potential for unfairness or prejudice to the appellant lay in the potential for it to be given more weight than it could properly bear, given the circumstances in which it came about. However, any such prejudice would not necessarily outweigh its probative value provided the jury were directed appropriately.[102] It became a matter for the jury as to whether or not the Crown case was sufficient to convict the accused. I would reject ground one of the appeal.
[102] If the Facebook procedure and/or the photo board procedure had been the only evidence in the Crown case bearing on the perpetrator’s identity, other considerations may have been called for.
Ground three,[103] that the verdict was unreasonable or could not be supported having regard to the evidence should also fail. The accumulation of circumstantial evidence available to the jury, already referred to, was such that, having been properly directed, it was open to the jury to convict. In M v The Queen,[104] Mason CJ, Deane, Dawson and Toohey JJ set out the approach to be observed when considering this ground of appeal.
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty... . But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations... .
[103] A second ground concerning the manner by which the verdicts were taken was abandoned by Notice of Discontinuance filed on 13 March 2015.
[104] (1994) 181 CLR 487 at 493; [1994] HCA 63 at [7] (citations omitted).
I agree with Peek J that, on a consideration of the whole of the evidence in the way required by the High Court in M v The Queen, it cannot be said that the verdict of the jury in this case was unsafe or unsatisfactory.
I would dismiss the appeal.
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