R v Dastagir & Parwani
[2015] SADC 51
•31 March 2015
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DASTAGIR & PARWANI
[2015] SADC 51
Reasons for Ruling of His Honour Judge Cuthbertson
31 March 2015
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - IDENTIFICATION BY STRANGER
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - PHOTOGRAPHS - GENERALLY
Application to exclude evidence of identification by photographic line-up - Home invasion and unlawful detention - Defendants identified by persons present at the house as being two of the three perpetrators - One identifying witness having been sent a photograph of the alleged perpetrator by acquaintance - Identification made by viewing photographic line-up - possibility of flawed identification process by witnesses describing appearance of perpetrator to each other before line-up.
HELD: Identifications permitted - The probative value of the identifications outweighed the prejudicial value - Probative value of the identifications included combined effect of identifications together with other circumstantial evidence - Low risk of prejudice - Use of photographs sanctioned by legislation.
Evidence Act 1929 s 34AB, referred to.
Festa v The Queen (2012) 208 CLR 593; R v Burchielli (1981) VR 611; R v Haidley [1984] VR 229; Hirst v The Police (2006) 95 SASR 260; R v Barnes [1995] 2 Cr App R 491, considered.
R v DASTAGIR & PARWANI
[2015] SADC 51
On 4 February 2014 a home invasion and various associated offences occurred at the home of CS at Northfield. During the afternoon three offenders entered the premises and forcibly detained the occupants of the house.
At that stage the occupants of the house were CS, his partner SH and one of his children Z. During the course of the afternoon his son, R, daughter, C (aged 12) and daughter, Yasmin (aged 6), returned home from school and were also forcibly detained. In addition a friend of the family, AA, also attended at the premises.
There were three offenders. One was described as an Asian man who waited in the bedroom observing the children for most of the time. The other two offenders were reasonably consistently described as the one being taller and thinner (the prosecution say this is Parwani) and the other being shorter and stouter (the prosecution say this is Dastagir).
The Asian man has never been identified or located.
Initially the police did not have any means of identifying the perpetrators.
On 7 February 2014 SH received a text message on her mobile phone from DH (an acquaintance) enclosing three photographs said by DH to have been sourced from Facebook.
Two of the photos (VDP3) show a man walking a dog by some water and a man sitting on a motorcycle. The photographs are photographs of Dastagir.
The photos were sent after SH had received a phonecall from DH advising her that DH had looked at various people’s pictures on Facebook.[1]
[1] See statement of SH dated 7 February 2014.
SH states, “As soon as I looked at the picture marked SHH2 [(the picture of the man walking the dog)] I recognised him as the buff looking Middle Eastern guy who came to our house. [...] In the photo marked SHH3 [(the photograph of the man sitting on the motorbike)] I recognised the tattoo I saw on the guy’s neck”.[2]
[2] See statement of SH dated 7 February 2014.
This is an identification of Dastagir It is objected to by the defence on the basis that it is not clear how DH got to locate this photograph in the first place.
DH has declined to provide any information in relation to the matter[3] and neither party made application to call her, notwithstanding that I had allowed a Basha enquiry and voir dire evidence on the topic of the identification.
[3] See statement of Miles dated 4 March 2015.
SH claims that after receiving these photographs at some stage she looked at Facebook friends[4] of AA and noted that Dastagir’s profile was present and that the profile name was “Tiq Tiq Sniper”.[5]
[4] For an explanation of Facebook see Strauss v Police [2013] SASC 3.
[5] See statement of SH dated 1 March 2015.
She claims that she showed the profile and the photos of Dastagir to CS but not to any of the children. What might have been shown to CS is of no moment because ultimately he did not identify either of the accused when shown a series of photographs.
On 22 March 2014, CS, SH, R, Z and C attended at the Holden Hill Police Station at the request of Brevet Sergeant Miles for each of them to be shown a folder of 12 photographs, one of which included Dastagir, with a view to seeing whether any of those persons would be able to identify him.
CS was not able to identify anyone but R, Z and C and SH all identified a photograph of the accused Dastagir.
It is complained that any of these witnesses may have seen the photographs of Dastagir that were sent to SH thus compromising the identifications or alternatively that there may have been discussions involving the identifying witnesses in which Dastagir was described such that the identifications were of little probative value.
The children, R & Z deny seeing any photograph of the accused prior to the photographic identification parade.[6]
[6] R - T158, Z - T176
C says that she may have seen the photographs of the accused prior to the photographic identification parade.[7]
[7] T186-187.
SH also denies it.[8]
[8] T118-119.
CS, on the other hand, says that the children were shown copies of the photograph of the accused in the hotel on the night of the incident.[9] I prefer the evidence of the children and SH compared to the evidence of CS. I am satisfied that the children did not see a photograph of the accused before making their identifications.
[9] T95.
Given the age of C, I do not think that she is correct when she says she may (my underlining) have seen the photographs.
In any event if they had seen the photographs it only goes to the weight of the subsequent identification in a photo line-up.
As to the identifications I note as follows:
Dastagir
1.In relation to CS he was unable to make a selection after looking at the array for an inordinate amount of time, over 4 minutes.
2. As to C identification was made in about 1 minute.
3. As to SH the identification was made relatively quickly, in about 40 seconds.
4. As to Z he made a short identification in about 18 seconds.
5. As to R he made an unequivocal identification in about 25 seconds.
There was nothing from the video footage of the identification to cause me any concern as to the probative value of the identifications.
The photographic identifications were fair in the sense that the photos used were of persons who looked similar to the accused Dastagir. Being head shots they give no indication of the accused’s build or height except insofar as they are all photographs of persons with full faces.
At the time the photographic line-up was conducted Dastagir was in custody. At that time, namely 22 March 2014, s 34AB of the Evidence Act 1929 which provides that evidence of identity of a person is not inadmissible and is not to be excluded merely because it was obtained other than by means of an identity parade involving a physical line-up, had not been enacted. The provision did not come into force until 7 July 2014.
Nevertheless, Dastagir had been requested and had declined to take part in a line-up involving a physical line-up of persons. At the time, therefore, it was permissible for the authorities to undertake a line-up by photographs.
Objection is made to the use of the photographic line-up evidence in court on the basis that the persons involved might have seen photographs of Dastagir from Facebook or from the photographs forwarded to SH.
As to whether they had seen the photographs prior to the identification parade the evidence of SH, CS, R, Z and C is as follows:
1. SH - She admits to having seen the photographs.[10]
SH – Denies showing any photos to R, Z and C.[11][10] T122-128.
[11] T118-119, 125, 127.
2. CS - he admits to having seen the photographs forwarded to SH.[12]
CS says that SH showed the photographs to R, Z and C in his presence.[13]
3. R – Denies having seen any photos prior to the identification parade or being shown any photos by CS or SH.[14]
4. Z – Denies being shown the photos from Facebook page by SH.[15]
5.C – Says that SH showed her some photographs but she cannot remember when that was or whether her siblings were present.[16]
[12] T89-92.
[13] T95-96.
[14] T158.
[15] T176.
[16] T186-187.
Objection is also taken to the use of evidence of photographic identifications made of Parwani.
Parwani
1.In relation to SH she makes a certain identification in about 5 seconds.
2. As to C she makes a certain selection in about 30 seconds.
3. As to CS he took nearly three minutes to identify photo number seven, a person who was neither of the accused.
4. As to R he took about 20 seconds to firmly identify the defendant.
5. As to Z he made a firm identification in about 15 seconds.
He is said to be the taller and slimmer of the non-Asian men who were involved in the home invasion.
On 7 September 2014, Detective Brevet Sergeant Miles attended the home of the identifying witnesses with folders which included a photograph of Parwani to show the potential identifying witnesses.[17]
[17] See statement of Miles dated 21 February 2015.
The identifying process occurred in the kitchen of the premises one witness at a time.
Parwani was arrested on 18 September 2014.
By this stage s 34AB of the Evidence Act was in operation. It provides as follows:
34AB—Identification evidence
(1)In a criminal trial, evidence of the identity of a person alleged to have committed an offence is not inadmissible, and is not to be excluded, merely because it was obtained other than by means of an identity parade involving a physical line‑up of persons.
(2)In a criminal trial, evidence of the identity of a person alleged to have committed an offence obtained by means of an identity parade is to be excluded unless—
(a)—
(i)an audio visual record of the identity parade is made and kept in accordance with the regulations; and
(ii)if the regulations prescribe procedures for the conduct of an identity parade—the identity parade is conducted in accordance with the prescribed procedures; or
(b)the judge is satisfied that the interests of justice require the admission of the evidence despite the failure to comply with paragraph (a).
It is complained that a possibility exists that the potential identifying witnesses may have discussed the matter among themselves and may have thus obtained information about what the person to be identified looked like.
It is also complained about the failure to offer the accused the chance of a line-up of persons.
The photographs were all extremely similar to each other and constituted an extremely fair array for the purpose of asking witnesses to make an identification. The photographs were head shots only thus there was no opportunity to use details of bodily shape or peculiarity to assist in identification.
It seems to me that it is much harder to describe a person’s facial characteristics (assuming there is nothing grossly abnormal about the person’s facial characteristics) than it would to describe a person’s bodily characteristics where the descriptions tall, short, heavy build, light build are fairly easily described discriminators. I find it impossible to accept that even if there had been discussion among the children while waiting to be shown the photographic array that it would have been possible to provide a word description so as to permit the photographic identification of Parwani.
As to the possibility that the witnesses might have talked to each other so as to assist each other in making the identifications the evidence is as follows:
1. CS – He says there was no discussion until the children had made their identifications.[18]
2. SH – She did not talk to the children about the identifications during the Parwani identifications.[19]
3. R – Claims he was told by CS a little bit about what Parwani looked like including that he was “tall, skinny and blue t-shirt on”. [20] I doubt that that was ever said but it goes only to the weight of the identification in any event.
4. Z – Simply did not know if any conversation took place in which the description of Parwani was discussed.[21] Again I doubt it was said but it is matter of weight of the evidence.
5. C – Was not questioned on the topic.
[18] T99-100.
[19] T132.
[20] T164.
[21] T178-180.
I would emphasize that any conversations by the witnesses describing the offenders was not due to police impropriety it is unlikely to have assisted any identifying witness to differentiate between the photos in the line-up and goes only to the weight of the identification evidence and carries with it no unfair prejudice to the defendants.
Synthesis
The principle in relation to the unfair use of identification evidence in a criminal trial is set out in the judgment of Gleeson CJ in Festa v The Queen:[22]
[22]But prejudice does not arise simply from the tendency of admissible evidence to inculpate an accused. It is unfair prejudice that is in question. Where evidence is relevant and of some probative value, prejudice might arise because of a danger that a jury may use the evidence in some manner that goes beyond the probative value it may properly be given. If there is relevant prejudice of that kind, it lies in the risk of improper use of the evidence, not in the inculpatory consequences of its proper use. If it were otherwise, probative value would itself be prejudice. All admissible evidence which supports a prosecution case is prejudicial to an accused in a colloquial sense; but that is not the sense in which the term is used in the context of admissibility. (my underlining)(citations omitted)
[23] The evidence of the four witnesses named in grounds 1 and 2 was of some probative value. However, the trial judge had a discretion to reject it, in the interests of fairness to the appellant, if he concluded that its probative value was outweighed by the danger of unfair prejudice to the appellant. ... [23]
[22] (2001) 208 CLR 593.
[23] Festa v The Queen (2001) 208 CLR 593, 603-604.
In the same case McHugh J said:
[51]But the weakness of relevant evidence is not a ground for its exclusion. It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or direct the jurors from their task.[24]
[24] Festa v The Queen (2001) 208 CLR 593, 609-610.
In my view all of the evidence of identification in this case is of some probative value. One can argue about the strengths or weaknesses of the individual identifications but I do not think it is arguable that the evidence has no probative value whatsoever and is thus inadmissible.
The exercise of my discretion to exclude it must therefore depend upon a finding that the prejudicial effect of the evidence outweighs its probative effect because of the risk of improper use by the jury or alternatively where improper conduct by the investigator has compromised the cogency of the identification evidence.
Strength of the evidence of identification
In performing the task of determining whether the probative value of the evidence exceeds its prejudicial value I am entitled to take into account the combined effect of the various identifications.
It is argued by counsel for the defence that the remarks in R v Burchielli[25] preclude me from so doing. In their joint judgment Young CJ and McInerney J said:
Now it often happens that two pieces of evidence, each in themselves unconvincing, will in combination produce a high degree of persuasion of a particular conclusion. The reason is often that the coincidence of the two pieces of evidence would be unlikely if the ultimate fact or conclusion had not occurred. But this is not true of identification evidence. Two unsatisfactory identifications do not support one another in the same way as two primary facts may lead to the conclusion of an ultimate fact.[26]
[25] See R v Burchielli (1981) VR 611, 616-621.
[26] (1981) VR 616.
The Court in Burchielli was of the view that the trial Judge did not adequately explain to the jury inter alia,
(5) That two effective identifications do not necessarily support one another.[27]
[27] R v Burchielli (1981) VR 611, 621.
Duggan J writing for the Full Court of the Supreme Court of South Australia quoted with approval Brooking J’s comments in R v Haidley:
Every identification is in a sense defective: even in strong cases (like those instanced in R v Turnbull [1977] QB 224, at p 229) respects in which the evidence might have been stronger can always be suggested. No identification is perfect. Identification evidence varies widely in quality. Pieces of evidence of identification, even though each of fairly slight value, may be added together in the sense that regard must be had to their cumulative effect in asking whether the jury may be satisfied beyond reasonable doubt that the accused was the offender, whether the evidence on that issue is confined to evidence of visual identification or includes other evidence. It is quite another thing to say that the testimony of identifying witnesses should not be lumped together in a way which obscures the need to give separate consideration to the possibility of error on the part of each witness. And it is yet another thing to observe that where the pieces of identification evidence are unsatisfactory, then, whether or not there is evidence of identity other than that of visual identification, the trial Judge may consider that the cumulative effect of the evidence is still so relatively slight as to make it impossible for the jury to be satisfied of identity beyond reasonable doubt.
Each identification, whatever its quality, does support every other identification in the sense that regard must always be had to the whole of the admissible evidence, whether of visual identification or otherwise, in determining the strength of the Crown case on identity. Evidence of visual identification does not stand apart from other evidence in the sense that the cumulative effect of such evidence may not be considered. Two or three far from perfect identifications may in the minds of a reasonable jury produce conviction beyond reasonable doubt where one would not. To tell a jury, without explanation, that two defective identifications do not necessarily support one another may mislead them. [28]
[28] Hirst v Police (2006) 95 SASR 260, 274-275 quoting R v Haidley [1984] VR 229, 251.
The Full Court in Hirst also endorsed Lord Taylor CJ’s comments, for the majority of the Court of Appeal, in R v Barnes:
... If the jury are satisfied by other evidence that one man committed all the offences then the victims at the identification parade are, ex hypothesi, all seeking to identify the same man and we can see no reason why their identification should not be regarded as mutually supportive. The safeguards peculiar to identification evidence are provided by the regime laid down in Turnbull (1976) 63 Cr App R 132: [1977] BQ 224. That involves warning the jury that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken.[29]
[29] Hirst v Police (2006) 95 SASR 260, 273 quoting R v Barnes [1995] 2 Cr App R 491, 497-498.
The Court in Barnes also approved a passage from the 1995 edition of Archbold:
Suppose there was only one charge of, for example, robbery and the prosecution case consisted of 5 identifying witnesses, all of who were entirely independent of the events and of each other and all of whom identified the defendant on identification parades conducted exactly in accordance with the prescribed procedure. A jury, properly directed would be entitled to reason that the chances of five people making the same mistake, without that mistake being revealed as a result of cross-examination was so remote that the explanation must be that the identifications are accurate ...[30]
[30] Hirst v Police (2006) 95 SASR 260, 273 quoting R v Barnes [1995] 2 Cr App R 491, 496 quoting Archbold (1995) [13-36] citations omitted.
The Full Court in Hirst concluded:
... Once it is established that the same person committed all the offences, and independent witnesses have identified the accused as the offender in each instance, there is no reason why the improbability reasoning referred to in Barnes should not apply.
This is not to ignore the fact that identification evidence comes into a special category because of the dangers of mis-identification. In addition to the usual warning about the dangers of identification evidence, it would be necessary to heed the warning previously referred to, “that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken”.[31]
[31] Hirst v Police (2006) 95 SASR 260, 274.
In this case I am satisfied that the identifying witnesses all made their identifications independently of each other. Indeed I have already described the great difficulty in explaining to another person without any pictorial representation to describe a human face in a word picture sufficient that the person who is told would be able to use it to make an identification from twelve similar faces. I think this is particularly so given the sameness of the photos used in the photographic line-up in this case and the lack of any outstanding facial features of either of the defendants.
In assessing the probative value versus prejudicial effect of the photographic identifications I am entitled to take into account that, notwithstanding the warnings that will be necessary to be given to the jury, the identifications are strong in that four people have independently identified two persons who are known to each other and whose DNA has been located at the relevant premises where the identification is said to have been made. I note a voir dire on the issue of DNA has been foreshadowed by counsel.
It would be a remarkable thing if all four had wrongly identified the same two individuals and just coincidentally these wrongly identified two individuals know each other and their DNA is located in the premises where the identifying witnesses say they were located.
Against that is the fact that the prejudice to the accused (other than from having been identified) is low.
There is the danger that the jury may come to the view that police possession of the photographs indicates that they have had prior dealings with the police.
It is difficult to see any other prejudice. Other matters pointed out by the defence which relate to the quality of the identification and ergo its asserted strengths are not the sort of prejudice that is being spoken of by Gleeson CJ in Festa (see paragraph 22).
I will allow the prosecution to lead the evidence.
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