R v Cunningham (No 2)
[2021] ACTSC 325
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Cunningham (No 2) |
Citation: | [2021] ACTSC 325 |
Hearing Dates: | 22 and 23 November 2021 |
DecisionDate: | 24 November 2021 |
Before: | Mossop J |
Decision: | See [34] |
Catchwords: | CRIMINAL LAW – EVIDENCE – Admissibility of photo identification evidence – whether photo board identification by two witnesses is admissible – where police conducted the photo board procedures in breach of s 235 of the Crimes Act 1900 (ACT) – consideration of s 138 of the Evidence Act 2011 (ACT) – consideration of probative value of evidence – desirability of admitting the evidence not outweighed by the undesirability of admitting evidence obtained in the way in which the evidence was obtained – photo board evidence not admissible |
Legislation Cited: | Crimes Act 1900 (ACT), ss 233, 235 Evidence Act 2011 (ACT), s 138 |
Cases Cited: | IMM v The Queen [2016] HCA 14; 257 CLR 300 R v Cunningham [2020] ACTSC 269 |
Parties: | The Queen ( Crown) Christopher Cunningham ( Accused) |
Representation: | Counsel M Dyason ( Crown) M Jones SC ( Accused) |
| Solicitors ACT Director of Public Prosecutions ( Crown) O’Connor Harris ( Accused) | |
File Numbers: | SCC 214 of 2019 SCC 270 of 2019 |
MOSSOP J:
Introduction
This is a ruling in relation to the admissibility of photo identification evidence that would be given by Mr Dimitrov. I have been asked to rule on the admissibility of that photo board evidence. In this case, the incident occurred on 2 March 2019. The accused was arrested on 1 May 2019.
Statutory provisions
The relevant statutory provisions are ss 233 and 235 of the Crimes Act 1900 (ACT) and s 138 of the Evidence Act 2011 (ACT). Sections 233 and 235 are as follows:
233 Identification parades—general
(1)This section applies to identification parades held in relation to offences.
(2)Subject to subsection (3) and to section 234, an identification parade—
(a) may be held if the suspect agrees; or
(b) shall be held if—
(i) the suspect has requested that an identification parade be held; and
(ii) it is reasonable in the circumstances to do so.
(3)An identification parade shall not be held unless the suspect has been informed that—
(a) he or she is entitled to refuse to take part in the parade; and
(b) if he or she refuses to take part in the parade without reasonable excuse, evidence of that refusal and of any identification of the suspect by a witness as a result of having seen a photograph or of having seen the suspect otherwise than during an identification parade may be given in any subsequent proceedings in relation to an offence; and
(c) in addition to any requirement under section 234, a legal representative or other person of the suspect’s choice may be present while the person is deciding whether to take part in the parade, and during the holding of the parade, if arrangements for that person to be present can be made within a reasonable time.
(4)The giving of the information referred to in subsection (3) shall be recorded by a video recording or an audio recording.
(5)An identification parade shall be arranged and conducted in a way that will not unfairly prejudice the suspect.
(6)Without limiting the intent of subsection (5), an identification parade shall be arranged and conducted in accordance with the following rules:
(a) the parade shall consist of at least 9 persons;
(b) each of the persons who is not the suspect shall—
(i) resemble the suspect in age, height and general appearance; and
(ii) not have features that will be visible during the parade that are markedly different from those of the suspect as described by the witness before viewing the parade;
(c) unless it is impracticable for another police officer to arrange or conduct the parade, no police officer who has taken part in the investigation relating to the offence may take part in the arrangements for, or the conduct of, the parade;
(d) no person in the parade is to be dressed in a way that would obviously distinguish him or her from the other participants;
(e) if it is practicable to do so, numbers should be placed next to each participant to allow the witness to make an identification by indicating the number of the person identified;
(f) the parade may take place so that the witness can view the parade without being seen if the witness requests that it take place in that way and—
(i) a legal representative or other person of the suspect’s choice is present with the witness; or
(ii) the parade is recorded by a video recording;
(g) nothing is to be done that suggests or is likely to suggest to a witness which member of the parade is the suspect;
(h) if the witness so requests—members of the parade may be required to speak, move or adopt a specified posture but, if this happens, the witness shall be reminded that the members of the parade have been chosen on the basis of physical appearance only;
(i) the suspect may select where he or she wishes to stand in the parade;
(j) if more than 1 witness is to view the parade—
(i) each witness shall view the parade alone; and
(ii) the witnesses are not to communicate with each other at a time after arrangements for the parade have commenced and before each of them has viewed the parade; and
(iii) the suspect may change places in the parade after each viewing;
(k) each witness shall be told that—
(i) the suspect may not be in the parade; and
(ii) if he or she is unable to identify the suspect with reasonable certainty he or she shall say so;
(l) the parade shall be recorded by a video recording if it is practicable to do so and, if that is done, a copy of the video recording shall be made available to the suspect or his or her legal representative as soon as it is practicable to do so;
(m) if the parade is not recorded by a video recording—
(i) the parade shall be photographed in colour; and
(ii) a print of a photograph of the parade that is at least 250mm x 200mm in size shall be made available to the suspect or his or her legal representative; and
(iii) the police officer in charge of the parade shall take all reasonable steps to record everything said and done at the parade and shall make a copy of the record available to the suspect or his or her legal representative;
(n) the suspect may have present during the holding of the parade a legal representative or other person of his or her choice if arrangements for that person to be present can be made within a reasonable time.
(7)The following questions are to be decided according to the common law:
(a) whether or not evidence of a suspect having refused to take part in an identification parade is admissible;
(b) if evidence of the refusal is admissible—what inferences (if any) may be drawn by a court or jury from the refusal;
(c) whether, after such a refusal, evidence of alternative methods of identification is admissible.
(8)If a witness is, under the supervision of a police officer, to attempt to identify a suspect otherwise than during an identification parade, the police officer shall ensure that the attempted identification is done in a way that is fair to the suspect.
…
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.
(2)If a police officer investigating an offence shows photographs or pictures to a witness for the purpose of establishing, or obtaining evidence of, the identity of a suspect, whether or not the suspect is in custody, the following rules apply:
(a) the police officer shall show to the witness photographs or pictures of at least 9 different persons;
(b) each photograph or picture of a person who is not the suspect shall be of a person who—
(i) resembles the suspect in age and general appearance; and
(ii) does not have features visible in the photograph or picture that are markedly different from those of the suspect as described by the witness before viewing the photographs or pictures;
(c) the police officer shall not, in doing so, act unfairly towards the suspect or suggest to the witness that a particular photograph or picture is the photograph or picture of the suspect or of a person who is being sought by the police in respect of an offence;
(d) if practicable, the photograph or picture of the suspect shall have been taken or made after he or she was arrested or was considered as a suspect;
(e) the witness shall be told that a photograph or picture of the suspect may not be amongst those being seen by the witness;
(f) the police officer shall keep, or cause to be kept, a record identifying each photograph or picture that is shown to the witness;
(g) the police officer shall notify the suspect or his or her legal representative in writing that a copy of the record is available for the suspect;
(h) the police officer shall retain the photographs or pictures shown, and shall allow the suspect or his or her legal representative, on application, an opportunity to inspect the photographs or pictures.
(3)If—
(a) a photograph or picture of a person who is suspected in relation to the commission of an offence is shown to a witness; and
(b) the photograph was taken or the picture made after the suspect was arrested or was considered to be a suspect; and
(c) proceedings in relation to the offence referred to in paragraph (a) or another offence arising out of the same course of conduct for which the photograph was taken or picture made are brought against the suspect before a jury; and
(d) the photograph or picture is admitted into evidence;
the jury shall be informed that the photograph was taken or the picture made after the suspect was arrested or was considered as a suspect.
(4)If a suspect is in custody in respect of an offence, a police officer investigating the offence shall not show a composite picture or a picture of a similar kind to a witness for the purpose of assisting the witness to describe the features of the suspect.
(5)If, after a police officer investigating an offence has shown to a witness a composite picture or a picture of a similar kind for the purpose referred to in subsection (4)—
(a) a suspect comes into custody in respect of the offence; and
(b) an identification parade is to be held in relation to the suspect;
the police officer in charge of the investigation of the offence may, unless doing so would be unfair to the suspect or be unreasonable in the circumstances, request the witness to attend the identification parade and make the necessary arrangements for the witness to attend.
(6)If, after the witness has been shown a composite picture or a picture of a similar kind for the purpose referred to in subsection (4), a person is charged with the offence, the police officer in charge of investigating the offence shall, on application by that person or his or her legal representative, provide him or her with particulars of any such picture shown to the witness and the comments (if any) of the witness about the picture.
(7)If a suspect is in custody in respect of an offence and a police officer investigating the offence wishes to investigate the possibility that a person other than the suspect committed the offence, subsection (4) does not prevent a police officer from taking action referred to in that subsection for the purpose of assisting a witness to describe the features of a person other than the suspect.
Evidence
The photo board identification occurred at about midnight on 30 April 2019 at Mr Dimitrov's house. When Burns J was asked to make a similar ruling, the Crown submission was that “otherwise available” in s 235 of the Crimes Act meant at the time and date the photo board procedure took place: see R v Cunningham [2020] ACTSC 269. I agree with the conclusion reached by Burns J that a broader interpretation of “otherwise available” is more consistent with the legislative preference for identification parades. His Honour concluded that it referred to the physical availability of the suspect. I agree.
In the present trial, the Crown conceded that there had been a breach of s 235 of the Crimes Act. The nature of the breach and the circumstances in which it occurred were a subject of contention as those matters were relevant to the considerations set out in s 138(3) of the Evidence Act. In the present case, I conclude that the accused was otherwise available and that he was reporting to police once a week from 11 March 2019. Police also knew where the accused lived and worked and had his telephone number.
Burns J pointed to the lack of evidence before him that the accused or his associates presented such an extreme and immediate physical threat to the witnesses to make it unreasonable to hold an identification parade. That aspect of the evidence did not change.
However, it is clear that the witnesses were concerned about their safety. I accept the informant's evidence that she was concerned about the safety of witnesses, that she had been discussing witness protection with Mr Dimitrov and that having regard to those matters, she considered that the photo board evidence was the best evidence that could be obtained in the circumstances.
The evidence about when the decision was made not to do an identification parade is conflicting. I do not consider it significant that an earlier request had been made for the preparation of a photo board. That was a prudent aspect of delegation in order to ensure that the relevant resources were available if it became necessary.
There was evidence that on 26 April 2019 “Major Crime” decided not to do an identification parade. The informant's conduct was consistent with that decision having been made in that she arranged for Mr Dimitrov and Ms Avison to do an identification parade in the early evening of 30 April 2019.
When Mr Dimitrov and Ms Avison did not show up, the informant then arranged for the photo board to be done at their house later that evening. However, at 7:38pm Sergeant Innes emailed the informant saying that either a photo board or identification parade needed to be conducted.
The informant gave evidence that Mr Dimitrov and Ms Avison expressed concerns about engaging in an identification parade process. They were never specifically asked to.
The informant's evidence was that the witnesses knew if they gave evidence of who persons were, there may be trouble and that people would be coming after them. She had observed that, “They were quite shaky and concerned when I did speak to them”. She never asked the specific question of Mr Dimitrov and Mr Avison. She might readily have done so.
Section 138 considerations
I will address each of the matters referred to in s 138(3) of the Evidence Act.
(a) The probative value of the evidence
The probative value of the evidence is high. For this purpose, the court must proceed on the assumption that the evidence is accepted: see IMM v The Queen (2016) 257 CLR 300 (IMM) at [43]-[45]. That enquiry should not distort a finding as to the real probative value of the evidence and thus consideration may be given to the capacity of the evidence to support any particular conclusion.
The example given in IMM at [50] is the lack of probative value associated with an identification made briefly in poor light and foggy conditions. The identification in the present case does not suffer from those vices. Mr Dimitrov had spent a substantial period with the offender. It can be accepted that the identification was not immediate or initially definitive, and that may be seen as detracting slightly from the probative value of the evidence. It would be a matter for a jury to assess whether the initial hesitation to identify a picture of the accused was as a result of difficulty doing so, or for some other reason.
The possibility of fearing the consequences of making an identification is suggested by some comments made by the witness during the course of the photo board exercise. However, having regard to the similarity of the images on the photo board, and the evidence of Mr Dimitrov's impaired eyesight, there would certainly be a proper basis for a jury to conclude that any hesitation involved the witness simply being careful to examine and consider each of the relevant images.
Other matters such as the subsequent statement in later evidence that Mr Dimitrov always lies to police would be matters for the jury to assess having regard to its assessment as to why those statements were made, rather than affecting the probative value of the identification.
(b) The importance of the evidence in the proceeding
The evidence is significant evidence in the proceeding. The identification evidence made by Mr Dimitrov relatively proximate to the incident may well be very significant evidence so far as the jury is concerned. It is certainly not peripheral. There are, however, other strands in the Crown case which it would rely upon in order to identify the accused.
(c) The nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding
The offences are very serious criminal offences. The proceedings are serious criminal proceedings.
(d) The gravity of the impropriety or contravention
The contravention involved a failure to comply with a clear legislative requirement. The evidence does not establish that it was contumelious.
(e) Whether the impropriety or contravention was deliberate or reckless
I do not characterise the contravention as deliberate or reckless. Rather I would characterise it as based upon a misapprehension of the strength of the obligation in s 235 of the Crimes Act and institutional incentives to favour the use of convenient and flexible methods of identification rather than inconvenient and cumbersome methods such as identification parades.
(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 (ICCPR)
No particular right under the ICCPR was pointed to as having been contravened.
(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
There are no other proceedings that have been or will be taken in relation to the contravention. So far as the individual officer is concerned, counsel for the Crown made it clear that he had spoken to her about the requirements for compliance.
(h) The difficulty (if any) of obtaining evidence without impropriety or contravention of an Australian law
It would not have been difficult to obtain the evidence without the contravention of an Australian law. The accused was on bail and reporting to police every Wednesday from 11 March 2019. The officer had, in fact, arranged for information to be passed to the accused when he reported to police. She was subsequently able to have a telephone conversation with him in order to arrange his arrest.
Had a request been made to the accused, who was on bail and reporting to the police in relation to other charges, and he had agreed, then an identification parade could have taken place. If he refused, or the relevant witnesses, having been asked, declined to make an identification by an identification parade, then s 235(1)(a) of the Crimes Act, (suspect refuses) or s 235(1)(b)(ii) (unreasonable in the circumstances) would have permitted photo identification.
The officer made no request of the accused as to whether or not he would participate in an identification parade. The officer made no direct requests to Mr Dimitrov as to whether he would make an identification in an identification parade or do so if it was possible to do so without being able to be identified by the suspect. Either of these simple requests could have resulted in the photo board identification being clearly lawful. If the accused or Mr Dimitrov both agreed to participate in the identification parade, then the only difficulty would have been that of conducting the identification parade, which difficulty the legislation specifically requires.
Decision
The obligation to conduct an identification parade is a significant burden on police. The requirements are detailed and the process is not necessarily simple. Having said that, it reflects a legislative judgment as to the appropriate way in which to identify suspects in circumstances to which it applies. It thus reflects a legislative command about the appropriate criminal process.
In contrast, a photo board exercise is one which imposes a limited administrative burden, even though there are specific requirements about its conduct in s 235 of the Crimes Act. As is demonstrated in this case, it is possible for the investigating officer to delegate the preparation of a photo board to another section of the police which can generate the photo board based on, I assume, police indices.
The identification exercise then involves a single, unrelated officer attending briefly with the witness and undertaking the identification exercise. Because the photo board may be pre-prepared and the identification exercise only involves a single officer, it is one which is much more flexible than an identification parade which can only be arranged at a time when all of the participants can be in the one place.
In those circumstances, there are likely to be significant incentives for officers to adopt the less burdensome and more flexible identification process. In the present case, I accept that the relevant witnesses had significant concerns for their safety. That was not established to be so extreme that the possibility of an ambush when attending the police station to participate in an identification parade was a realistic one, but it was certainly enough to give the witnesses significant concerns about cooperating with police.
However, the evidence about the decision-making process in relation to this issue was unclear. There was some evidence that an institutional decision of “Major Crime” had been made to not offer an identification parade. There was evidence that the informant had decided to proceed by way of photo board on 30 April 2019, but there was also evidence that after that conclusion had been reached, Sergeant Innes reopened the possibility of an identification parade as an alternative.
The evidence did not disclose any clear documentation of the decision or the rationale for the decision. That lack of documentation tends to suggest a failure to appreciate the strength of the legislative preference and the limited circumstances in which a departure from that legislative preference is permitted. Sergeant Innes described the obligation in s 235 of the Crimes Act as one which required a line-up “if it’s practicable”. That does not accurately reflect the exclusion in s 235(1)(b)(ii).
The question under s 138 of the Evidence Act is a difficult one. To not admit the evidence in this case would be to refuse to admit evidence of significant probative value which identifies a suspect in a very serious criminal investigation. On the other hand, that would allow the undermining of a clearly and long-expressed legislative preference for the conduct of identification parades.
In my view, the need to ensure that there are significant incentives put before police to comply with such clearly expressed legislative requirements is a significant one because of the onerous nature of those requirements and the potential for police to adopt an approach which assumes that because of the gravity of the alleged offending, relevant evidence will be admitted, even if obtained in breach of those requirements.
Ultimately, I conclude that the Crown has not discharged the persuasive burden that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence obtained in the way in which it was obtained. I therefore rule that the evidence of the photo board identification of the accused by Mr Dimitrov is not admissible in the proceedings.
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 8 February 2022 |
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