R v Cunningham
[2020] ACTSC 269
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v Cunningham |
| Citation: | [2020] ACTSC 269 |
| Hearing Dates: | 23 September 2020 |
| Decision Date: | 23 September 2020 |
| Reasons Date: | 9 October 2020 |
| Before: | Burns J |
| Decision: | See [10]-[13] |
| Catchwords: | CRIMINAL LAW – EVIDENCE – Admissibility of evidence – |
| whether photoboard identification by two witnesses is admissible | |
| – whether police conducted the photoboard procedures in breach | |
| of s 235 of the Crimes Act 1900 (ACT) – consideration of probative value of evidence – whether desirability of admitting the | |
| evidence outweighed the undesirability of admitting evidence | |
| Legislation Cited: | Evidence Act 2011 (ACT) ss 114, 115, 138 Crimes Act 1900 (ACT) s 235 |
| Parties: | The Queen (Crown) Christopher Cunningham (Accused) |
| Representation: | Counsel |
| M Dyason (Crown) T Jackson (Accused) | |
| Solicitors | |
| ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
| File Numbers: | SCC 214 of 2019; SCC 270 of 2019 |
| BURNS J: |
1. Mr Jackson on behalf of the accused Christopher Cunningham objected to evidence that the Crown proposed leading of photoboard identification processes conducted by police with two witnesses, BE and TB. On 23 September 2020, I ruled that the Crown would be permitted to lead the evidence relating to BE, but not that relating to TB. I indicated that I would give my reasons at a later date. There are my reasons.
2. The Crown alleges that Mr Cunningham was one of a number of people present at an argument between two groups of people which occurred in front of residential premises in South Canberra. It alleges that the accused fired a number of shots from a rifle during that argument, wounding HP. Mr Cunningham has pleaded not guilty to the charges brought by the Crown.
3. The Crown alleges that BE and TB were present at the scene of the shooting and saw the person who fired the shots. It was a person who was at that time unknown to them. Both BE and TB participated in a photoboard identification procedure conducted by the police. It is alleged that BE identified a photo of the accused Mr Cunningham as a photo of the man who fired the rifle on 2 March 2019. TB identified a photo of a person who was not Mr Cunningham.
4. The objection taken by Mr Jackson was two-fold. First, that the evidence was inadmissible by virtue of s 114 of the Evidence Act 2011 (ACT) (the Evidence Act) and, secondly, that the police had breached s 235 of the Crimes Act 1900 (ACT) (the Crimes Act).
The first objection was misconceived. Section 114 of the Evidence Act renders “visual
identification evidence” inadmissible unless an identification parade was conducted, it
would not have been reasonable to conduct an identification parade or the accused refused to participate in an identification parade. The section, however, expressly
excludes “picture identification evidence” which is governed by the provisions of s 115
of the Evidence Act. With the exception of an accused person who is in custody, s 115 does not contain a precondition of the admissibility of picture identification evidence equivalent to that found in s 114 with regard to visual identification evidence. At the time the photoboard identification procedures were conducted, Mr Cunningham was not in custody. The failure to conduct an identification parade, or to offer one to the accused, therefore does not render the evidence inadmissible.
6. Turning to the second objection made by Mr Jackson, s 235 of the Crimes Act provides:
235 Identification by means of photographs
(1) If a suspect is in custody in respect of an offence or is otherwise available to take part in an identification parade, a police officer investigating the offence shall not show photographs, or composite pictures or pictures of a similar kind, to a witness for the purpose of establishing, or obtaining evidence
of, the identity of the suspect unless—
(a) the suspect has refused to take part in an identification parade; or
(b) the holding of an identification parade would be—
(i) unfair to the suspect; or
(ii) unreasonable in the circumstances.
7. As noted above, Mr Cunningham was not in custody at or about the time police
conducted the photoboard procedures. The Crown submitted that the words “otherwise available” in s 235(1) should be given a narrow interpretation consistent, it submitted,
with the immediate availability of a person in custody to participate in an identification
parade. It submitted that for the accused to be “otherwise available” for the purposes
of s 235 the accused must establish that he was available at the time and on the date that the photoboard procedure took place. I did not accept that submission. The provisions of s 235, as well as the provisions of Part 3.9 of the Evidence Act, evidence a legislative preference for an identification parade as the preferred method of obtaining
identification evidence. In my opinion, a broader interpretation of the words “otherwise available” is more consistent with this legislative preference than the narrow
interpretation suggested by the Crown. I was satisfied that Mr Cunningham was available on or about 30 April 2019 to take part in an identification parade if he chose to do so. In that regard, the proviso to s 235 allowing photograph identification to take place where the suspect has refused to participate in an identification parade gives
colour to the meaning of the word “available” in the chapeau to the provision. The term
“available” must refer to the physical availability of the suspect, and not to the
willingness of the suspect to participate in such a parade. The section requires police to offer a suspect the opportunity to participate in an identification parade if their physical location is such as to make it feasible for them to participate. It may be that there will be a rare case where the conduct of the identification process is so urgent as to make it unreasonable in the circumstances for an identification parade to be held, but this was not such a case.
8. In giving evidence on the application, Senior Constable Watkins stated that a deliberate decision was made not to offer Mr Cunningham the opportunity to participate in identification parades with BE or TB. The reason for that decision was two-fold: first,
police were concerned that the witnesses may be subject to “ambush” if
Mr Cunningham was made aware that witnesses were going to be at a nominated place at a particular time for the purpose of an identification parade. Secondly, police considered that the witnesses would refuse to participate in such a parade if they were required to personally confront the accused.
9. There was no evidence adduced to suggest that the accused Mr Cunningham or his associates presented such an extreme and immediate physical threat to the witnesses as to make it unreasonable to hold an identification parade. Unfortunately, police never directly asked the witnesses if they would be prepared to participate in an identification parade, so the fear held by police that they may not agree to participate is speculation.
10. I was satisfied that police conducted the photoboard procedures in breach of s 235 of the Crimes Act, and as such the admissibility of the evidence depended on the application of s 138 of the Evidence Act. That section provides:
138 Exclusion of improperly or illegally obtained evidence
(1) Evidence that was obtained—
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law; must not be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person
conducting the questioning—
(a)
did, or omitted to do, an act in the course of the questioning even though the person knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b)
made a false statement in the course of the questioning even though the person knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3) Without limiting the matter that the court may take into account under subsection
(1), it must take into account—
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c)
the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
Note The International Covenant on Civil and Political Rights is accessible at
11. With regard to the evidence of the photoboard identification by BE, I was satisfied that the probative value of the evidence (being the extent to which the evidence could
rationally affect the jury’s assessment of the probability that Mr Cunningham is the
person who fired the rifle and wounded HP) is high. The evidence is also important evidence in the proceeding. The offences with which the accused Mr Cunningham is charged are serious offences. While the decision not to offer Mr Cunningham the opportunity to participate in an identification parade was a deliberate decision, I was not satisfied that there was a deliberate or reckless breach of s 235 of the Crimes Act. I accepted that for the reasons given by Senior Constable Watkins she believed there was reasonable grounds for not holding an identification parade.
12. Balancing the relevant considerations set out in s 138, I was satisfied that the desirability of admitting the evidence outweighed the undesirability of admitting evidence obtained in the way the evidence was.
13. The situation was different with regard to the evidence of TB’s participation in the
photoboard procedure. She did not identify a photograph of Mr Cunningham as the person who discharged the rifle. The probative value of her evidence was slight, and it had little importance in the proceeding. For this reason, I declined to exercise my discretion under s 138 of the Evidence Act to admit the evidence.
14. I direct that these reasons are not to be published other than to the parties until after
the accused’s trial is completed.
I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.
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