R v Eastman (No 31)
[2018] ACTSC 11
•6 February 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Eastman (No 31) |
Citation: | [2018] ACTSC 11 |
Hearing Dates: | 21 – 22 June 2017 |
DecisionDate: | 6 February 2018 |
Before: | Kellam AJ |
Decision: | See [238] |
Catchwords: | CRIMINAL LAW – EVIDENCE – Whether identification evidence should be admitted – whether evidence should be excluded pursuant to ss 56(2), 114, 135, 137 and 138 of the Evidence Act 2011(ACT) and/or the common law rule to exclude unfair evidence – whether probative value of identification evidence outweighed by unfairness to accused – test to be applied by trial judge when deciding whether taken at its highest identification evidence is probative without assessing credit and reliability of witness |
Legislation Cited: | Australian Federal Police Act 1979 s 14 Evidence Act 2011 (ACT) ss 55, 56(2), 114, 116, 135, 137 and 138 |
Cases Cited: | Alexander v The Queen (1981) 145 CLR 395 Bayley v The Queen [2016] VSCA 160 Sio v The Queen [2016] HCA 32; 259 CLR 47 |
Parties: | The Queen (Crown) David Harold Eastman (Accused) |
Representation: | Counsel Mr M Thangaraj SC, Ms M Campbell and Mr K Lee (Crown) Mr G Georgiou SC, Mr M Stanton and Ms Line (Accused) |
| Solicitors Office of the ACT Director of Public Prosecution (Crown) ACT Legal Aid Office (Accused) | |
File Numbers: | SCC 111 of 1992SCC 111 of 1992 |
Kellam AJ:
Introduction
The defence submits that the evidence of eleven witnesses upon whom the prosecution seeks to rely in relation to the identification of the accused, his motor vehicle or his clothing should be excluded, principally because in each case the probative value of such evidence is outweighed by the danger of unfair prejudicial effect pursuant to s 137 of the Evidence Act 2011 (ACT) (‘the Act’). Furthermore, and in some circumstances, it is submitted that the evidence is inadmissible or should be excluded by operation of ss 55, 114, 135 and 138 of the Act and/or the common law discretion to exclude unfair evidence.
Legal principles
Section 55 of the Act provides as follows:
55Relevant evidence
(1)The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2)In particular, evidence is not taken to be irrelevant only because it relates only to—
(a)the credibility of a witness; or
(b)the admissibility of other evidence; or
(c)a failure to present evidence.
Section 137 of the Act provides that:
137Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
IMM v The Queen
Both parties agree that IMM v The Queen [2016] HCA 14; 257 CLR 300 (‘IMM’) is now the leading judgment on the operation and effect of ss 55 and 137 of the Act and the interplay between those provisions, and particularly the meaning of relevance and probative value.
There is no dispute between the prosecution and the defence that the majority judgment in IMM stands for the principle that a trial judge takes the evidence at its highest and assumes its reliability and credibility for the purpose of assessing probative value under s 137 of the Act.
In IMM the majority said at 312 [39]:
The question as to the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue is to be determined by a trial judge on the assumption that the jury will accept the evidence. This follows from the words "if it were accepted", which are expressed to qualify the assessment of the relevance of the evidence. This assumption necessarily denies to the trial judge any consideration as to whether the evidence is credible. Nor will it be necessary for a trial judge to determine whether the evidence is reliable, because the only question is whether it has the capability, rationally, to affect findings of fact. There may of course be a limiting case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury. In such a case its effect on the probability of the existence of a fact in issue would be nil and it would not meet the criterion of relevance.
The majority said further at 314-5 [50]:
....It must also be understood that the basis upon which a trial judge proceeds, that the jury will accept the evidence taken at its highest, does not distort a finding as to the real probative value of the evidence. The circumstances surrounding the evidence may indicate that its highest level is not very high at all. The example given by J D Heydon QC (Heydon, "Is the Weight of Evidence Material to Its Admissibility?", (2014) 26 Current Issues in Criminal Justice 219 at 234) was of an identification made very briefly in foggy conditions and in bad light by a witness who did not know the person identified. As he points out, on one approach it is possible to say that taken at its highest it is as high as any other identification, and then look for particular weaknesses in the evidence (which would include reliability). On another approach, it is an identification, but a weak one because it is simply unconvincing. The former is the approach undertaken by the Victorian Court of Appeal; the latter by the New South Wales Court of Criminal Appeal. The point presently to be made is that it is the latter approach which the statute requires. This is the assessment undertaken by the trial judge of the probative value of the evidence.
The dangers of Identification evidence
The defence relies upon a number of well-known authorities to point out that there are significant dangers in identification evidence.
In Alexander v The Queen (1981) 145 CLR 395 at 402-3, Gibbs CJ observed:
The authorities support the conclusion that I have reached, which is that, as a matter of law, evidence of an identification made out of court by the use of photographs produced by the police is admissible. However, a trial judge has a discretion to exclude any evidence if the strict rules of admissibility operate unfairly against the accused. It would be right to exercise that discretion in any case in which the judge was [of the] opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused.
(My emphasis.)
In Domican v The Queen (1992) 173 CLR 555 (‘Domican’) at 561 the High Court (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ) said:
.... the seductive effect of identification evidence has so frequently led to proven miscarriages of justice that courts of criminal appeal and ultimate appellate courts have felt obliged to lay down special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue.
As the High Court (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ) said in Rv Dickman [2017] HCA 24; 91 ALJR 686 (‘Dickman’) at [45]:
Recognition of the seductive effect of identification evidence led their Honours in Domican to state a requirement of the common law of evidence that where evidence of identification represents a significant part of the prosecution case, the judge must warn the jury of the dangers of convicting on it in a case in which its reliability is disputed. Their Honours did not suggest that the seductive effect of identification evidence cannot be addressed by judicial direction. The point made in Domican was the need for cogent and effective directions tailored to the circumstances of the case.
Further, in Dickman at [48] the Court said:
Unfair prejudice may be occasioned because evidence has some quality which is thought to give it more weight in the jury's assessment than it warrants or because it is apt to invite the jury to draw an inference about some matter which would ordinarily be excluded from evidence. The "rogues' gallery" effect of picture identification evidence creates a risk of the latter kind because the appearance of some photographs kept by the police may invite the jury to infer that the accused has a criminal record.
The defence places considerable reliance upon Bayley v The Queen [2016] VSCA 160 where the Victorian Court of Appeal held that the decision of a trial judge to not exclude evidence of identification was incorrect. In that case Bayley was the subject of extensive publicity after having been arrested and charged with the murder of one Jillian Meagher in September 2012. Bayley pleaded guilty to that murder in April 2013. In consequence of the extensive publicity a woman who said she had been raped in a laneway in late 2000, observed a photograph of Bayley on Facebook and she said that she recognised him as the person who had raped her.
The woman notified police and made a statement in late October 2012. The police laid charges against Bayley for rape in January 2013. In February 2013, the woman was shown a photoboard containing 12 photographs. She identified a photograph of Bayley by saying ‘It definitely looks like No. 4’. At the time of making that identification the complainant had seen Bayley’s image in the media on a number of occasions and knew that he had been charged with both the murder of Jillian Meagher and the rape of herself.
The Victorian Court of Appeal, having considered the majority decision in IMM determined at [55] that the purported identification of Bayley from Facebook images was not merely weak, but ‘simply unconvincing’ and that ‘given the circumstances of the Facebook identification and the publicity surrounding’ the known involvement of Bayley in the Meagher case, that ‘the later photo board identification was initially of no probative value whatever’.
The Court considered that in ‘the circumstances of the case before it the risk of the ‘displacement effect had to have been acute’. It stated at [96] that ‘[b]y the time the complainant came to view the photo board, she had seen [Bayley’s] image in the media repeatedly’ and she knew that Bayley ‘as well as having been charged in relation to the rape and murder of Jill Meagher, had also been charged with her rape’.
I turn now to consider the application of the above principles to the identification evidence sought to be led by the prosecution in relation to individual witnesses.
Consideration of the individual witness’s identification evidence
Raymond Webb
The significance of the evidence of Mr Webb to the prosecution case, that the accused was linked to the murder weapon, is set out in the Amended Case Statement filed by the prosecution on 21 August 2015. Mr Klarenbeek had advertised firearms for sale which advertisement was seen by Mr Webb who attended at Mr Klarenbeek’s premises at about 8.30 am on 31 December 1988. There he saw a Ruger 10/22 rifle with a telescopic sight. The rifle was threaded to fit a silencer.
Mr Webb has given evidence that in consequence of seeing a newspaper advertisement relating to the sale of a Ruger 10/22 rifle he attended at Mr Klarenbeek’s premises at about 8.30 am on 31 December 1988.
Mr Webb first made a statement to police on 28 January 1989. In that statement he made no mention of seeing a person enter the Klarenbeek house as he was leaving. On 28 August 1989 he told police that while he was at the Klarenbeeks’ house no‑one else came there to look at the rifles Mr Klarenbeek had for sale.
Subsequently, on 22 November 1990, Mr Webb gave evidence at the coronial inquest that his first two statements were true and correct. In his third statement to police, on 26 October 1992, Mr Webb made no mention of seeing any one when he was leaving the Klarenbeeks’ house.
It was not until an interview with police on 13 November 1992 that Mr Webb gave an account of seeing the man at the Klarenbeek house. He provided a description of the man as being in his 50’s, about 5’8” or a bit taller, a little tubby, wearing light coloured clothes with thinnish hair, clean shaven with no hat or glasses. He said that he had picked up a paper one day ‘and seen a photo or seen it on TV’. When he saw that he ‘just linked who it was’.
In the course of that interview on 13 November 1992, Mr Webb was shown a photoboard. He picked the accused out as being ‘the closest’.
He later said in an undated statement that ‘once I saw Eastman in the media’ he recognised him as the person he saw at the Klarenbeeks’ house. He said he was 100% sure it was the same person.
Subsequently, he gave evidence on 18 November 1992 at the inquest. His evidence there was generally consistent with what he had told police five days earlier.
Mr Webb gave evidence at the first trial on 6 June 1995. Mr Webb gave evidence that he had attended at Mr Klarenbeek’s house in Queanbeyan after seeing an advertisement in The Canberra Times on Saturday 31December 1988. He was working that day as a Telecom linesman. Upon arriving at the Klarenbeeks’ house there were a number of firearms on display including a Ruger 10/22 rifle with a telescopic sight and a TOF Russian bolt action rifle which he subsequently purchased. He examined the Ruger. It had a telescopic sight on it and had a thread for screwing a silencer onto it. Mr Klarenbeek showed him how a silencer fitted to the rifle. He said that as he left the Klarenbeeks’ house somebody walked in and he had to turn sideways, otherwise they would have walked into each other. That person was walking quickly and looking straight ahead. Mr Webb said he made eye contact with the person for a couple of seconds.
Subsequently, Mr Webb saw a public appeal by police for anyone who may have seen a Ruger rifle to come forward. Mr Webb made a statement to police on 28 January 1989. He made no mention then of seeing a person enter the Klarenbeek house. He said that subsequently he saw the same person on the news or TV. Mr Webb said when he saw the face he connected it with the person who had walked into Mr Klarenbeek’s house. He said that ‘it was a shock’ but at that stage he did nothing about it. He said that he was 100% certain that the person he saw on the news was the same person that he saw walk into Mr Klarenbeek’s house. He said that subsequently, on a Sunday, he was working with Telecom upgrading the Yarralumla Nursery telephone lines when he saw the same person again. Mr Webb agreed that he had made three statements to police, the first on 28 January 1989, the second on 28 August 1989 and the third on 26 October 1992. He agreed that in his statement of 28 August 1989, he had said that no‑one else had come to look at the rifle Mr Klarenbeek had for sale whilst he was there.
He agreed that he thought the person who sold the Ruger would be able to identify the person who bought it. He also agreed that he gave evidence at the first part of the coronial inquest on 22 November 1990 whereby he stated that the statement of 28 August 1989 was true. His explanation for that was that he did not “think it was important enough to, you know, for my self‑risk and my family. I was worried about it. I didn’t see him buying any guns, all I seen him was there, you know”.
Mr Webb gave evidence that he was again interviewed by police in October 1992 and that subsequently he became ‘scared and worried’ that the police may have known that he’d ‘seen someone walking out’. Soon after he went on a fishing trip with a friend of his who was also a policeman and shared his concerns with him. His friend, a Sergeant Scotland, said he would arrange for another officer to talk to him.
Mr Webb was cross-examined in considerable detail by counsel for the accused, Mr Terracini.
Submissions as to the admissibility of the evidence of Raymond Webb
The defence submits that the identification evidence of Mr Webb is unconvincing for a variety of reasons, and thus, should be excluded pursuant to s 137 of the Act.
First, in his first statement of 28 January 1989, and second statement of 28 August 1989, Mr Webb made no mention of having seen a person enter the Klarenbeek house. The fact that he failed to do so in his third statement of 26 October 1992 is also relied upon.
Secondly, an attack is made on the credit of Mr Webb in that at the first phase of the coronial inquest he gave sworn evidence that his first two statements were true and correct when he was later required to concede that they were not.
Thirdly, the fact that Mr Webb did not give police a description of the man he saw at the Klarenbeeks’ house until 13 November 1992 and that that description contained a number of inconsistencies with the appearance of the accused, including that Mr Webb identified the person he saw as being “in his fifties”, was clean shaven and had no glasses is submitted to be relevant to the question of whether his evidence is unconvincing.
In general, I consider that, much of the above criticism of the evidence of Mr Webb is really relevant to the credibility and reliability of Mr Webb as a witness.
However, the defence relies also upon other aspects of the evidence of Mr Webb which it submits is unconvincing. The facts that Mr Webb did not know Mr Eastman, that he made eye contact with the man he saw for only a couple of seconds, that there was nothing distinctive about the man’s clothing, that Mr Webb had seen the image of the accused in the context of media coverage of the murder and in circumstances where the accused was a suspect, are all relied upon as demonstrating not only that the identification was unconvincing, but that the probative value is weak.
In particular, the identification of the accused by way of the photoboard is submitted to be inadmissible. It will be recalled that when Mr Webb identified the accused from the photoboard on 13 November 1992 he said that the photograph was “the closest” to the man he saw. In this regard the defence relies upon Pitkin v R [1995] HCA 30; 69 ALJR 612 (‘Pitkin’).
In Pitkin, a witness to a robbery was shown a number of photographs by police about half an hour after the incident in question. It is unclear how many photographs she was shown but she picked out three photographs of the accused and said “[t]his looks like the person”. There was no other evidence in the case as to who the offender was. As the High Court, in its joint judgment (Deane, Toohey, and McHugh JJ) observed at 37:
Obviously, the fact that an accused person "looks like" a person who in fact committed a crime is, of itself, insufficient to sustain a conviction of that accused of that crime. Yet, prima facie, the evidence led against the appellant in the present case went no further than that. Once it is accepted that the appellant "looks like" the offender, Ms Vella's selection of three photographs of the appellant with the comment "This looks like the person" prima facie proves nothing more than what she said. In that regard, there is no significance in the fact that Ms Vella selected three photographs rather than one. All that establishes is that there were at least three photographs of a person, the appellant, who looked "like" the offender.
Clearly such evidence as that in Pitkin, standing alone, is not sufficient to sustain a conviction. However, in this case, the evidence of Mr Webb is not based solely upon an identification of a photograph on the photoboard which on one view may be equivocal. The evidence of Mr Webb is that the first time he saw the accused on television he recognised him immediately as the person who he said he had seen at Mr Klarenbeek’s house.
Nevertheless and in addition the defence relies upon the possible displacement effect in the case of the evidence of Mr Webb as to the identification of the accused.
The “displacement effect” was described by Stephen J in Alexander v The Queen (1981) 145 CLR 395 (‘Alexander’) at 409, (at [2] of Stephen J’s judgment) as follows:
.... Lastly, there is the "displacement" effect. Having been shown a photograph, the memory of it may be more clearly retained than the memory of the original sighting of the offender and may, accordingly, displace that original memory. Any subsequent face-to-face identification, in court or in an identification parade, may, on the identifying witness'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.
The first issue to be considered as to whether the displacement effect is of such consequence in the case of Mr Webb’s evidence, is the fact that his identification of the accused is considerably different from that of the identification made by the complainant in Bayley.
As is apparent from reading that case, the identification made was in the context of widespread publicity that Bayley had been arrested for the murder in question. In the circumstances of such a long delay between the alleged rape and the sightings of a photograph taken many years later the concerns expressed by Stephen J in Alexander, that photographs may “differ from nature”, are obvious.
Furthermore, the displacement effect is rarely the sole reason that identification evidence is ruled to be inadmissible, unless the influence of the effect is overwhelming. It is generally considered as one of a number of factors, as in the case of Bayley, where it was but one of six factors taken into account by the Court of Appeal (see Bayley at [58]).
There is a final issue raised by the defence in relation to the identification by Mr Webb of the accused on the photoboard. It may be that an Australian Federal Police (AFP) Regional Instruction Number 14/91 (Regional/Instruction Document) was applicable at the time of the photoboard identification of the accused by Mr Webb.
With regard to identification by photographs the Regional/Instruction Document provided as follows:
7.The decision of the High Court of Australia in the matter of Alexander v. Regina (1981) 55 A.L.J.R. 355 recognises the necessity for the use of photographs in the ‘detection’ stage of an investigation, but clearly indicates that identification parades or ‘some satisfactory alternative means where the witness can be asked directly to identify the suspected person’ ought to be used once the identity of a suspected person has been ascertained. Therefore the showing of photographs of a suspect to any witness after that suspect has been apprehended should not take place.
8. ....
9.Where a suspect is still at large and not identified, the use of a properly prepared photoboard is permissible, but the use of this procedure should cease as soon as the suspect or offender is identified or is placed in lawful custody. Personal identification should then be attempted, either formally, in accordance with General Instruction 31, or by the use of other satisfactory means. Only exceptional circumstances would permit consideration of the continued use of photoboards in such cases. ....
It is submitted in the case of Mr Webb that it was improper for police to have shown him the photoboard after he had made a purported identification of the accused from his picture in the media and that in the alternative to submissions advanced relying on ss 135 and 137 of the Act, that the evidence of the photoboard identification should not be admitted pursuant to s 138 of the Act.
138Exclusion 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)…..
(3)Without limiting the matters 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.
It is appropriate at this point to observe that an issue does arise in relation to submissions made by the defence that evidence should be excluded on the basis of s 138 of the Act by reason of some alleged impropriety on the part of police. It is contended by the defence that the evidence of a number of witnesses, including Mr Webb, should be excluded on that basis. In general, the prosecution did not provide a response to such assertions in either the written submissions or in oral argument before me. However at the conclusion of argument on 22 June 2017, Mr Thangaraj stated as follows at p 243-4 of the transcript:
Can I just say one thing, not about the argument, but just generally in relation to 138, I think the way that your Honour will have to deal with any 138 issue across any of these pre-trials would be that if your Honour got to the point where that was an issue, or could be an issue, that your Honour would make every other finding necessary up to that point but then to engage in the balancing exercise, which would have to be done possibly with further evidence and that should be done at trial time because it might be, we are not going to lead anyway, or whatever was agreed between the parties. I would ask in relation to all the pre-trials that anything that involves impropriety and the balancing exercise, that-anyway, if we just defer the final aspect because we haven’t-(really) made submissions about balancing exercise and I think in a case like this, you really have to hear from the officer. Anyway, I think that is the safest way to deal with it. If your Honour gets to it.
In response, Mr Stanton said at p 244:
My initial response would be this was the pre-trial hearing on this issue and if my learned friend sought to adduce evidence in relation to the desirability of admitting the evidence, now is the time and he didn’t do that. In any event, our submission is that in relation to particularly Reid, the Reids and the processes there, the Hadjitofis, also Ms Kaczmarowski in relation to being told that it was new and blue [i.e. the car owned by the accused]. The inquest transcript does clearly say that she was told by police that it was new and blue. Those are matters that your Honour could determine on the papers.
It is the fact that the s 138 issue was raised by the defence in written submissions, and in the course of oral submissions by Mr Stanton in relation to the evidence of a number of witnesses. The prosecution did have ample opportunity to provide responses to those complaints. Accordingly, I propose to consider the s 138 issue on a witness by witness basis. I consider that there is weight in the submission of Mr Stanton that at least some of the matters can be determined on the papers. On the other hand, if I consider that there has arisen a s 138 issue which cannot be determined on the papers, then I consider it will be appropriate to enable the parties to make further submissions in relation to that issue. In any event it appears to me that the complaint which is made by the defence in relation to Mr Webb is a matter which can be dealt with on the papers.
However before doing so it is necessary for me to consider what, if any, instructions or guidelines applied to the conduct of police in terms of identification processes at the time. This does raise an issue of some complication as to what policies and procedures were in effect during the period between 19 December 1979 and 31 December 1992.
The prosecution contends that no reliance can be placed upon the document referred to as Regional Instruction 14/91 as it appears that it was in draft form at the time and that the AFP state that there was no Regional Instruction operative within the relevant period. The prosecution states that General Instruction 31 (GI 31) of which there are two versions, applied at the relevant time. It is said that GI 31 was published on 19 December 1979 and continued until 14 February 1991 when it was replaced by a revised version. That revised version sets down procedures for identity parades and the use of photographs for the purposes of identification. With regard to the use of photographs for the purpose of identification both versions provide that “no assistance shall be given” to the witness and that “where it is necessary to ascertain whether a person can be recognised by witnesses, every precaution shall be taken to ensure that the identification is carried out fairly” and that police are to take care that “the person attempting to effect recognition does so under fair conditions”.
The submissions made on behalf of the accused in relation to Mr Webb are that given the apparent terms of Regional Instruction 14/91 it was improper for Mr Webb to be shown a photoboard after he had made a purported identification and that there were no exceptional circumstances that would justify the use of photoboards in circumstances whereby a purported identification of a suspect had already been made. In relation to the reliance by the defence upon Regional Instruction 14/91 the prosecution contends that such reliance is erroneous.
The Australian Federal Police Act 1979 (‘AFP Act’) as in force at the relevant time provided under s 14 that the Commissioner could issue “Orders” and “Instructions” for the effective and efficient conduct of the AFP. Thus, the nature of GI 31 is an Instruction under s 14 of the AFP Act. The prosecution submits that given the fact that ‘general instructions’ do not appear on the Federal Register Instruments, it can be inferred that the nature of such an instruction is that of an internal ‘best practice’ policy or guideline. It is submitted that this inference is further corroborated by the ability of the Commissioner to amend or revoke any general instruction at any time. It is submitted that on the basis of the above material, there is no basis to say that the Regional Instruction 14/91 was anything other than a draft at the relevant time. The prosecution has informed me that the two versions of GI 31 ‘were the only documents in operation, concerning identification procedures, located by the AFP during their searches’ and furthermore that the AFP ‘does not have, nor can it locate, any ACT region-Regional Instruction operative within the relevant period’. Thus it would appear that the following processes were applicable at various times during the period in question:
(a)The first version of ‘General Instruction 31 – identification of suspected or arrested persons’ was published on 19 December 1979 and continued until 14 February 1991;
(b)The second revised version of GI 31 came into effect on 14 February 1991.
The two versions of GI 31 are similar. There is no basis for me to infer that there was any Regional Instruction 14/91 applicable in the ACT region at the relevant time.
That said however the defence submits that neither version of GI 31 provides any procedure for ‘informal’ identification parades as that conducted with Dennis Reid. It is submitted that rather there are detailed policies and procedures for the conduct of identification parades to ensure that those operate fairly to an accused person. It should of course be observed that the accused exercised his right not to participate in any formal identification parade, and thus the police were unable to conduct themselves in accordance with the GI 31 policies, at least in those relating to identification parades.
In my view, s 138 does not come into play in respect of the evidence of Mr Webb. The first step in the application of s 138 is to determine whether the evidence sought to be adduced was in fact obtained improperly or unlawfully in the sense referred to in s 138(1)(a) and (b). It is clear that there was no unlawful conduct on the part of police. As to the meaning of improper and impropriety the NSW Court of Appeal, Baston JA, Barr and Hall JJA, said in Robinson v Woolworths Ltd [2005] NSWCCA 426; 64 NSWLR 612 at [23]:
…. identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as “the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement”. Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be “quite inconsistent with” or “clearly inconsistent with” those standards.
In the context of the evidence relating to Raymond Webb, I do not consider that there was any impropriety on the part of police, particularly in the absence of strict guidelines and standards, which would render the evidence of the photoboard identification inadmissible pursuant to s 138 of the Act.
As stated above, the prosecution contends that reliance upon Regional Instruction 14/91 is erroneous. Based upon the instructions provided to the prosecution by the AFP, it does not appear in the case of the photoboard identification of the accused by Mr Webb that such evidence was improperly obtained. If, in fact, Regional Instruction 14/91 did apply at the time (contrary to the prosecution submissions), this provided guidelines only.
Analysis of the admissibility of the evidence of Raymond Webb
Obviously, there is room for an attack on the credit of Mr Webb for his failure, until 13 November 1992, to tell police that he observed someone else attend at the Klarenbeek house. His explanation was that he did not come forward originally as he did not see the accused purchase a gun at the Klarenbeek residence, that he was meant to be at work and not at the residence at the time, that he was wearing his Telecom uniform and that he thought Mr Klarenbeek would tell the police about the other man who came.
His credibility in respect of this issue seems to me to be very much a matter for the jury. However, as the prosecution contends, the evidence given by Mr Webb subsequent to 13 November 1992 has been generally consistent.
The first step for me to consider is whether the evidence proposed to be led from Mr Webb as to his purported identification of the accused is relevant under s 55 of the Act. In my view, it is clear that the evidence proposed to be led is capable of rationally affecting the assessment of the probability of the intermediate fact that it was the accused who attended at the Klarenbeek house in December 1988. It is not a matter for me to determine whether the evidence is credible. I do not consider that the evidence is, to use the words of IMM, “so inherently incredible, fanciful or preposterous, that it could not be accepted by a rational jury”.
The next step for me to consider is whether or not, pursuant to s 137 of the Act, the evidence should be excluded on the basis that the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused. As is clear from IMM, this assessment should exclude any consideration by me of issues of credibility or reliability. As stated in IMM at [54]:
The Evidence Act contains no warrant for the application of tests of reliability or credibility in connection with ss 97(1)(b) and 137. The only occasion for a trial judge to consider the reliability of evidence, in connection with the admissibility of evidence, is provided by s 65(2)(c) and (d) and s 85. It is the evident policy of the Act that, generally speaking, questions as to the reliability or otherwise of evidence are matters for a jury, albeit that a jury would need to be warned by the trial judge about evidence which may be unreliable pursuant to s 165.
Whilst I accept that the probative value of the evidence to be led from Mr Webb by the prosecution possesses some features which may be said to be of low or limited probative value, those limitations are readily apparent. As pointed out above Mr Webb was cross-examined extensively about his identification and its limitations at the first trial. Indeed, the submissions made to me by Mr Stanton, junior counsel for the accused, articulate with clarity some of the matters which reflect upon the probative value and which the jury will have to contend with and consider. The prejudice with which s 137 is concerned is the risk that the jury may misuse the evidence in some unfair way. Of course, appropriate directions will be required to ensure that the evidence is not misused. First of all, there is the requirement under s 116 of the Act that the judge must inform the jury there is a special need for caution before accepting identification evidence. Secondly, there are the numerous authorities which direct the trial judge to ensure that the attention of the jury is drawn to any weaknesses in the identification evidence. (See Domican v The Queen (1992) 173 CLR 555).
In the circumstances of the evidence expected to be given by Mr Webb, the problems in the evidence to which appropriate warning and directions should be given are plainly exposed. I conclude that, given the directions that the trial judge is required to give by law, the risk that the jury might engage in impermissible reasoning, or give the evidence disproportionate weight, or use it in some way which is unfair to the accused, is minimal. In my view the circumstances of this case are not such that unfair prejudice may be occasioned because the evidence of Mr Webb has some quality which might give it more weight in the jury’s assessment than it warrants, or because it is likely to invite the jury to draw an inference about some matter which would ordinarily be excluded from evidence such as the well-known “rogues gallery” effect of picture identification by use of photographs kept by police which might invite speculation that the accused has a criminal record.
I observe that, at the first trial, arguments about the admissibility of Mr Webb’s identification evidence were raised before the then trial judge. His Honour permitted the evidence to go before the jury but gave detailed directions to the jury in relation to such evidence. (See 6577-6579 and 6607-6608 and 6610 of the trial transcript).
On appeal to the Federal Court of Australia in Eastman v The Queen (1997) 76 FCR 9 (‘Eastman v The Queen’) the Full Court (von Doussa, O’Loughlin and Cooper JJ) summarised the evidence given by Mr Webb at 16-17 as follows:
Mr Webb gave evidence that he had seen an advertisement for the sale of the various firearms that had been placed in the Canberra Times by Mr Klarenbeek on Saturday, 31 December 1988. On arrival at Mr Klarenbeek’s house in Queanbeyan that day he was shown several weapons, including a Ruger 10/22 rifle. He noticed that its barrel was threaded so that a silencer could be fitted and that it had a telescopic sight. There were three silencers on the table where Mr Klarenbeek was displaying items which he had for sale. Mr Webb said that as he was leaving Mr Klarenbeek’s premises another person arrived. It was necessary for Mr Webb to turn sideways so that the two men could pass on the pathway without colliding. He said he made eye contact, and the other person was not moving out of the way. He subsequently identified that person as the appellant. Mr Webb said that he returned to Mr Klarenbeek’s house on Thursday, 5 January 1989 and purchased a Tof .22 rifle. He then noted that the Ruger 10/22 was no longer on display. He said that Mr Klarenbeek did not require him to produce any type of licence.
Shortly after the murder, following a television programme in which the police appealed for information about Ruger rifles, Mr Webb contacted the police. He told them that he had seen one at Mr Klarenbeek’s house but he made no mention of the man who had arrived as he was leaving, nor did he refer to him when he gave a written statement to the police six months later on 28 August 1989. Much later in the year he saw, so he claimed, the appellant on television and recognised him as the man whom he had seen at Mr Klarenbeek’s house. In evidence‑in‑chief he said that he had not mentioned the other man when he first spoke to the police as he did not recall the subject being raised. However, he admitted that in his statement of 28 August he had falsely stated that whilst he was at Mr Klarenbeek’s house on 31 December 1988 “nobody else came to look at the rifle he had for sale...”. Mr Webb also repeated that statement when giving evidence on oath at the Inquest. He offered, as his explanation, that he did not want to get involved, that he had visited Mr Klarenbeek during his working hours without his employer’s permission and that he was scared for himself and his family. He also assumed that Mr Klarenbeek would have been able to identify the person who had bought the Ruger 10/22 rifle. It was not until sometime late in 1992 that Mr Webb told the police that he had identified the appellant on television some three years or so earlier.
A ground of appeal before the court contained complaint that the trial judge had erred in admitting the identification evidence of Mr Webb. In dealing with this ground the court said at 105 that:
The Crown case did not rest mainly, or even substantially, on the identification of the appellant by Mr Webb. Nor was Mr Webb’s identification of the appellant as the purchaser of the Ruger 10/22 from Mr Klarenbeek without support from other circumstantial evidence. There was other evidence that the appellant had been looking to acquire a Ruger, that the purchaser who acquired the rifle did not want the telescopic sight, that Mrs Kazmarowski had seen a car similar to the appellant’s near Mr Klarenbeek’s residence, that the appellant withdrew $200 from his ATM the following day, and the evidence of Mr Reid.
In our opinion the evidence of Mr Webb’s identification was rightly admitted. Once it was admitted it required careful direction as to the general and specific dangers that the identification may be mistaken, and as to how the evidence should be weighed with other evidence in this case. These directions were given.
In my view the evidence of Mr Webb is admissible.
Dennis Reid and Peter Reid
In summary, the Amended Case Statement filed by the prosecution asserts the following in relation to both witnesses.
Mr Reid owned a sports store in Queanbeyan. A few days before the murder of Mr Winchester, a man (whom the prosecution asserts is the accused), brought a Ruger 10/22 rifle into the sports store and offered to sell it to him. The man was wearing an Akubra hat. He said he had the rifle in the boot of his car and then brought it in to show Mr Reid. Mr Reid observed that the rifle had a telescopic sight but had no front sight and that the end of the barrel was threaded. Mr Reid said to the man that “You’ve rooted the barrel”. He said the man then suggested that the barrel could be replaced. Mr Reid then told the man that he knew a young chap who had a farm who was looking for a rifle and suggested the man leave his phone number.
The man, however, was unwilling to leave his phone number and said that he would ring Mr Reid back. This made Mr Reid suspicious and when the man left, Mr Reid asked his son, Peter Reid, to follow the man and get the number plate of his car.
Peter Reid stated that he left the store and observed the man drive away in a blue car but could not see the number plate. A couple of days later the man rang Dennis Reid. Mr Reid told him that the person who might have been interested was going to buy another gun but that if he wanted to the man could leave his phone number and Mr Reid would get in touch with him if anything else came up. The man declined to do this.
Some weeks later, Dennis Reid was watching the news on television when an item came on about the investigation of the murder of Mr Winchester. He saw a picture of a Ruger rifle. Mr Reid said that he then mentioned to his wife about the man having visited him and the “rooted barrel”.
Several days later, Mr Reid was at a football match when he came across an acquaintance who was a Detective Sergeant with the AFP. Mr Reid told him about the man who had visited his store. Soon after, on 30 January 1989, police attended at his store. Mr Reid described the man as being about 5 foot 10 inches tall and of medium build. The police showed him a photoboard which contained a photograph of the accused. Mr Reid was unable to identify anyone with certainty.
Mr Reid was next approached by police on 28 May 1990 when Detective Sergeant Lawler showed him a different photoboard which contained a photograph of the accused. Mr Reid did not make a positive identification but narrowed it down to two people and in the end said he was 80% sure that the photograph of the accused was the man who came to his shop. He was not prepared to make a positive identification unless he was certain. Police suggested that he might be assisted if he could see the person in the flesh. He agreed with that suggestion. In August 1990 attempts were made to put Mr Reid in the presence of the accused to see if Mr Reid could identify him as the man who came to his sports store with the Ruger.
Mr Reid was fitted with recording equipment and with a video camera recording what was happening. Mr Reid waited in Petrie Plaza, a large public mall which police knew was frequented by the accused.
On 24 August 1990, Mr Reid did not identify anyone. On the second occasion, the next day, the accused went to Petrie Plaza and joined a queue at an automatic teller machine. Mr Reid recognised the accused as very similar to the man who came to the store, but was not prepared to make a firm identification as he did not get a frontal view of the man.
On 28 August 1990, Mr Reid was taken to the Jolimont Centre at a time when police knew the accused was on a bus travelling to the Centre.
On two occasions Mr Reid approached the accused and spoke to him. Following this, Mr Reid stated that he was certain that it was the accused who came to his store. In addition to his appearance, Mr Reid recalled his “soft voice”. Mr Reid said “I was 100 per cent sure then it was him because I’d spoken to him. He had that soft voice and it was the same as on the telephone and the soft mannerism in the shop and I was prepared to make 100% identification that that was the same fellow that was in the shop”.
Defence submissions in relation to Dennis Reid’s evidence
The defence submission is that the evidence of purported identification by both Dennis Reid and his son Peter Reid has no real probative value and that the danger of the displacement effect is manifest.
Alternatively defence submits that at its highest the evidence of identification of the accused by Dennis Reid, the identification of the firearm by both Dennis Reid and Peter Reid, and the identification of the car by Peter Reid, is simply unconvincing and any probative value is outweighed by the danger of unfair prejudice to the accused. Defence submits the evidence should be excluded pursuant to s 137 of the Act. Furthermore it is submitted that aspects of the evidence should be excluded under s 138 of the Act by reason of impropriety on the part of the police.
In order to consider the weight of these and other defence submissions, to which I will return, it is necessary to give some consideration to the factual matters upon which the defence relies.
First, defence relies on the fact that on 30 January 1989, after having had a discussion with his acquaintance Detective Sergeant Marmont, Mr Reid had failed to identify the accused from a photoboard. It is submitted that at that time the image of the accused had not been circulated in the media. Defence also on the description then given to police by Mr Reid of the man being 40 years old, 5 feet 10 inches tall (it being said that the accused is 5 feet 7 ½ inches tall) with facial features and hair type not being memorable.
The defence relies upon the discussion Mr Reid had with Detective Sergeant Lawler about 16 months after he first spoke to Detective Sergeant Marmont. Mr Reid stated that he had never looked to see if the barrel of the rifle he looked at was threaded. On that occasion Mr Reid gave a more detailed description of the man who came to his shop as being 45 to 50 years old, about 5 feet 10 inches, with a little bit of a reddish complexion, 12 ½ to 13 stone, ‘gingery fairy [sic]’ coloured hair, well groomed, pretty sure he was clean shaven, Australian, and seemed well educated.
At that time Mr Reid agreed that he had been following the investigation and media reports on the Winchester murder on a regular basis. Mr Reid told police at that time that he knew the name of the public servant as “Eastman” and that he had been trying to get a glimpse of him on TV. He said he had seen him trying to get into a car where he was “partly covered by a coat or ... whatever”.
Reliance is had on the statement made by Mr Reid to police at the time that he looked at photograph 5 on the photoboard to the effect that “it just reminds me of ... it could’ve been that bloke that was getting in the car ... half covered ... I could be wrong but it looks a bit gutty ... to be the bloke that was in the shop”. The defence submits that it is apparent that at this point Mr Reid was comparing photograph 5 with what he had seen on TV and that his account was clearly contaminated by displacement. Thereafter the defence refers to the following question and answers appearing in the record of interview between Detective Sergeant Lawler and Mr Reid on 28 May 1990:
Q153.Okay, so what, you’re, basic position Dennis as I understand it, is that er, some of the photographs that you have been shown, because of how they are, you are unable to identify.
A. And be one hundred percent sure, yeah.
Q.154.And be one hundred percent sure.
A.Yeah I am
Q155.Would you on the other hand, eliminate anybody from that, those photographs that you’ve seen, is there anybody who it is not
A.Yeah, for sure, for sure. See I’ve got to picture a bloke without. I just can’t. See I just don’t know whether he had glasses or not, a lot of these blokes, so that bloke’s not one.
Q156.Number twelve, number eleven.
A.Definitely not him.
Q157.Number nine.
A.Definitely not him.
Q158.Number eight.
A.See he’s got that footballer look, definitely not him.
Q159.Number seven.
A.Definitely not this fellow.
Q160.Number one.
A.Or him.
Q161.Number two.
A.Too old.
Q162.Number three.
A.Too young looking for this bloke, and he’s just not the right sort of look.
Q163.Number four.
A.Not him.
Q164. Number six.
A.So, there’d only be probably a couple of blokes in there which would be him.
Q165. Which is number ten.
A.No, it’s twenty.
Q166. Is it?
A.Oh, ten.
Q167. Number ten.
A.Oh, and him.
Q168. Number five.
A.If I had, if I had a pick a two, it’d be those two but, as far as the face, but that’s, that bloke there, now right, he’s got a walk, very, very upright sort of walk, but anyway. I just couldn’t be more help to you.
Q169.Okay, I’ll just get you to place your signature and the date on the back of that photograph.
The defence argues that the above extract demonstrates that Dennis Reid was ‘intentionally influenced’ by Detective Sergeant Lawler to identify the accused and thus the evidence should be excluded under s 114 (2) of the Act. In my view, a fair reading of the transcript does not reveal any such influence. However, the defence submits further that the above exercise was not evidence of identification and given the process of elimination undertaken by Detective Sergeant Lawler, the identification of the accused by Mr Reid has no probative value at all. It is argued that the approach taken by Detective Sergeant Lawler assumes that the suspect’s photograph is contained in the array of photographs and then it becomes a process of deduction by reason of areas of similarity rather than a proper identification. Defence submits further that the process whereby Detective Sergeant Lawler asked Mr Reid if he could eliminate anyone from the photoboard was improper and enlivens s 138 of the Act.
In my view, in the context of Mr Reid seeking to be, as he said, one hundred percent sure of his identification, although Detective Sergeant Lawler could have managed the process in a better way his conduct, cannot be said to have been of a level of impropriety to justify recourse to s 138. It should be observed that at Q132 of the record of conversation between Detective Sergeant Lawler and Mr Reid on 28 May 1990, Mr Reid was told that the photoboard “may or may not contain the person who came into your shop”. I do not consider that it can be said that Detective Sergeant Lawler gave assistance to Mr Reid to identify the accused in any way.
A further attack is made on the evidence of Mr Reid in relation to his evidence relating to the Ruger rifle. In the course of his interview with police on 28 May 1990 (at Q64‑65), Mr Reid told police that he never looked for a silencer on the rifle he saw, but if it had a silencer on it he would have seen that. Mr Reid was asked directly if he would have seen if the barrel was threaded to which he said “I had no reason to look at the end of the barrel”.
Mr Reid was again interviewed by Detective Sergeant Lawler on 2 August 1990 in consequence of him telling Detective Sergeant Lawler that he had further information in relation to his interview of 28 May 1990. He said that he had now [EBR.005.08012] remembered after a discussion with his wife that he told the man who visited his house that he had “rooted the barrel” and that the gun had a thread on the outside of the barrel which he thought had been done roughly.
Subsequently, on 9 August 1990, Mr Reid identified a Ruger 10/22 rifle shown to him by police as being similar to the one he had seen when the man came to his shop.
In a statement prepared that day Mr Reid said that the police officer who brought the rifle to him had told him “that it was the one with the revolving magazine”. It is submitted that it is clear that Mr Reid had already seen the 10/22 Ruger in the televised call by police for information from the public and that his evidence about the Ruger has no probative value. Thus it is argued by the defence that the evidence of Mr Reid that the rifle shown to him by police was the same model as the one brought into the shop by the man in question should be excluded pursuant to s 137 and or s 138 of the Act.
A further matter of criticism raised by the defence relates to what is described by the defence as the “informal parades” on 25 August 1990 and 28 August 1990. It should be observed that Mr Reid on both occasions was wearing a recording device and transcripts were made of these recordings. [EBR.005.01820 and EBR.005.01834].
The transcripts reveal that on Friday 24 August 1990, Mr Reid attended Petrie Plaza but did not see the person who had come into his shop. On that occasion Mr Reid said “probably a hundred people would’ve walked through there”. On the following Saturday, 25 August 1990 at about 10.30 am, he attended again. Detective Sergeant Lawler warned Mr Reid that it was not known if the person would come to the location or not. He was told to be “sure before you identify anybody that that’s the person that came into your shop”. Mr Reid said, “I know who walked into the shop and I feel sure that I could recognise him even though its [sic] been a while”. Mr Reid also said that there had been recent media about the matter and that as soon as “a certain name was mentioned I went into another room so that I didn’t, ah, want to confuse any pictures of that I had in my mind of, of the person I’m looking for that walked into the shop”.
The transcript then reveals Mr Reid as having observed a person at the ATM and he said:
I just went over there to have a bit of a closer look, bloke standing at the .... automatic bank, well I don’t know whether it’s him or not. I don’t, could be him I’m not too sure, I just need a bit more time thought the other guy was a bit bigger, a bit taller when I say bigger, and his hair doesn’t seem to be as gingery”.
Later, he said:
Yeah, and I’m not a hundred percent, on today I wouldn’t be a hundred percent because I don’t know just couldn’t get sort of get close enough ....
On Tuesday 28 August 1990, another endeavour was made when Mr Reid was tasked to stand in the area where he had seen the person he saw on the previous Saturday. On this occasion Mr Reid had a short conversation with the accused who said “a total of 16 very short words” to Mr Reid in answer to his questions. At that stage Mr Reid told police that he was “a hundred percent sure that’s the guy”. Mr Reid then approached the accused again and had another short conversation.
The defence submits that the whole process of the informal parades was improper and “that for police to continually place Mr Reid in the proximity of the accused after he had repeatedly failed to make a positive identification” demonstrates that the probative value of the evidence is non-existent or very low and that there is a manifest danger of unfair prejudice. In effect it is submitted that the identification of the accused in such circumstances was no or little better than a dock identification.
In relation to evidence of the informal parades which the defence submits should be excluded pursuant to ss 135, 137 and 138 of the Act, the defence relies upon the decision of the High Court per Latham CJ, Rich, Dixon, Evatt and McTiernan JJ in Davies and Cody v The King (1937) 57 CLR 170 (‘Davies’) at 181 where the Court said:
…. where, before the occasion with which it is sought to connect the person accused or suspected, the witness has seldom or never seen him, experience has led the English court to look for the greatest care to avoid a mistake or prejudice. They treat it as indisputable that a witness, if shown the person to be identified singly and as the person whom the police have reason to suspect, will be much more likely, however fair and careful he may be, to assent to the view that the man he is shown corresponds to his recollection.
And then further at 182 where the court said:
Similarly, if a witness is shown a single person and he knows that that person is suspected of or charged with the crime, his natural inclination to think that there is probably some reason for the arrest will tend to prevent an independent reliance upon his own recollection when he is asked whether he can identify him.
In addition to the above matters, the defence refers to GI 31 referred to above which provides that “no assistance should be given” to a witness in relation to the use of photographs for an identification. It is submitted that the process of elimination of photographs as suggested by Detective Sergeant Lawler during his interview of 28 May 1990 with Mr Reid was in breach of GI 31 and thus improper. As stated above, I do not consider that Mr Reid was intentionally assisted by Detective Sergeant Lawler in making his identification. However, it is argued that that improper process infected the informal identification parade, which did not incorporate all of the protections of a formal identification parade. In this regard of course it should be observed that the accused had been requested to engage in a formal identification parade but had refused. Furthermore, it is submitted that GI 31 did not provide for informal identification parades.
The defence places reliance on the fact that the voice identification of the accused by Mr Reid was more than 18 months after Mr Reid had spoken on two occasions with the man who came to his shop, and that was in circumstances whereby Mr Reid had never spoken to the man previously. It is submitted that the transcript reveals that the accused said a total of 16 very short words to Mr Reid in answer to questions before Mr Reid told police on the livewire to which he was then attached that he was “100 per cent sure”. After that Mr Reid approached the accused a second time and had another very short conversation with the accused who said “no, I haven’t seen you before, not that I recall anyway.”
Defence submits that the evidence of voice recognition has all the potential frailties of identification generally and is simply unconvincing. Furthermore it is submitted that the identification had taken place in circumstances of displacement and contamination and it is submitted in circumstances of improper conduct on behalf of police.
It should be observed that Mr Reid gave evidence at the first trial. First he gave evidence on a voir dire during which he was cross-examined by then counsel for the accused, after which objection was unsuccessfully taken to the admission of the evidence. Then he gave evidence before the jury. Having heard Mr Reid give evidence on the voir dire and in the course of his ruling to the effect that his evidence was admissible, Carruthers AJ stated (at transcript page 1886-7):
A jury may well take the view.... that rather than being uncertain, he was a man who was absolutely determined not to make any incorrect identification.....
…. If he continues to assert that [‘]I am not going to identify him until I am absolutely certain in my own mind and indeed I will not even do that until I have actually spoken to him and confronted him,[‘] that could leave it open to the jury to take the view that it was a particularly satisfactory type [of identification]. But it is essentially for them and I just cannot see how I could judicially rule that it was so unsatisfactory that it should [not] go to the jury ….
Furthermore the evidence of Mr Reid was dealt with in some detail in the course of the judgment in Eastman v The Queen at 17 and 105. There was no suggestion on appeal that the evidence of Mr Reid had been admitted into evidence improperly.
Prosecution submission in relation to Dennis Reid’s evidence
First, it is submitted that the circumstances of the attendance of the person who sought to sell the rifle gave Mr Reid every reason to recall the event. He initially thought the person was attending to serve a summons on him.
Mr Reid then thought it was strange that a person wanting to sell a gun did not wish to leave a phone number, so much so that he asked his son to check the person’s car and the registration. Following that face-to-face contact, Mr Reid received a follow-up phone call which gave him further reason to recall the event. The prosecution submits that the evidence of Mr Reid makes it clear that he had a good recollection of events and that before making a positive identification he wished to be certain.
With respect to the defence criticism that on 30 January 1989 Mr Reid “failed to identify” the accused, the prosecution submits that in fact what Mr Reid said about this was that he was unable to be “100% sure” (see Record of Interview Q154).
As to the criticism made of the evidence of Mr Reid about what he saw of the Ruger rifle the prosecution points out that any lack of reliability or credibility in relation to this matter is not relevant in determining whether the identification evidence should be admitted. In any event it is submitted that whilst it is true that Mr Reid provided two different versions of whether or not the barrel on the rifle had been threaded, that does not detract significantly from its credibility or reliability as his wife had refreshed his memory and he corrected his mistake within three months. It is submitted that Mr Reid was always candid and forthright about the limitations of his memory
In terms of the displacement effect, the prosecution argues that the evidence is that prior to 28 May 1990 when Mr Reid identified that the man in photograph 5 was most likely the man who came to his shop, Mr Reid had not seen a clear photographic image of the accused. Thus it is argued that that identification is not subject to the displacement effect.
In relation to the defence criticism that the so-called informal identification parades were improper and impermissible because Mr Reid was impermissibly influenced to recognise the accused, the prosecution submits there is no evidence to support that assertion. I have already concluded that there was no intentional assistance provided to Mr Reid in the course of the conversation between him and Detective Sergeant Lawler on 28 May 1990. Indeed it is submitted on behalf of the prosecution that the extent to which police went to enable Mr Reid to make a positive identification in circumstances whereby Mr Reid was not prepared to make a positive identification unless he was 100% positive, confirms that he was not impermissibly influenced.
Moreover, to the extent that the defence relies upon Davies, the prosecution submits that such reliance is misplaced. It is submitted that there is no evidence that Mr Reid was exposed to a single person. Rather he was placed in public locations and told that he should attempt to identify the individual who had attended his store. In this regard the prosecution relies upon Festa v The Queen [2001] HCA 72; 208 CLR 593 (‘Festa’) where the Court discussed informal identification parades and criticised the circumstances of identification in that case. The Court said at [245]:
No attempt was made to "blend" the appellant into a mixed group of persons. On the occasion of purported identification, she was the only person in the vicinity of the courthouse who could have fitted even an approximate description of the offender.
The prosecution submits that the circumstances under which Mr Reid identified the accused at Petrie Plaza were entirely different from those considered in Festa. He was placed in a public place amongst a mixed group of persons, amongst whom multiple individuals could have borne similarity to the accused.
Consideration of the admission of the evidence of Mr Dennis Reid
There are obviously, as there were at the first trial, grounds upon which the reliability, and perhaps the credibility, of the evidence of Mr Reid can be attacked by the defence. However, taken at its highest and excluding issues of credibility and reliability I do not consider that the evidence is so weak as to say it is simply unconvincing and I conclude that the evidence of visual identification intended to be led by the prosecution from Mr Reid is admissible.
In relation to the identification of the voice of the man spoken to by Mr Reid, the evidence is that some days before the murder of Mr Winchester, Mr Reid had a conversation of apparently some minutes with a person who wanted to sell a Ruger rifle. According to Mr Reid there was a discussion about the barrel of the rifle, a discussion about getting the telephone number of the man and about where the man lived. Some days later the man telephoned back and a further discussion took place about leaving a contact telephone number. Nearly 20 months later on 28 August 1990 Mr Reid spoke to the accused at the Jolimont Centre. Mr Reid stated that he recalled the soft voice and mannerisms of the person who he had earlier spoken to in relation to the possible sale of the Ruger rifle. He said “I was 100% sure in the end it was him because I had spoken to him. He had that soft voice and it was the same as on the telephone and the soft mannerism in the shop and I was prepared to make 100 per cent identification that that was the same fellow that was in the shop”.
The recognition of the voice of the accused by Mr Reid was based upon a distinctive feature expressed by him as a ‘softness of voice’. On this basis it appears to me that the evidence would be admissible even in accordance with the test expressed by O’Brien CJ at CL in R v Smith [1984] 1 NSWLR 462 at 477 where his Honour said that evidence of the voice of a person at the scene of the crime can amount to positive identification only where the person hearing the voice was very familiar with the voice or where the voice was ‘very distinctive’. Of course in the case of the identification of the voice of the accused by Mr Reid, it was not in the course of commission of a crime but after having had two previous separate conversations with him. It should be observed that although the test referred to in R v Smith [1984] 1 NSWLR 462 was approved by the Court of Criminal Appeal (see R v Smith (1986) 7 NSWLR 444; 23 A Crim R 266) it was not adopted by the High Court in Bulejcik v R (1996) 185 CLR 375 where McHugh and Gummow observed at 407 that the determination of the correctness of the decision in Smith “should await a case where a decision on the point is essential”.
The appropriate test has been considered in the Australian Capital Territory on two occasions by Miles CJ. In R v Jones and Harris (1989) 41 A Crim R 1, Miles CJ considered the approach taken by the Victorian Supreme Court to the effect that there were no particular rules of admissibility relating to voice identification other than the residual discretion to exclude such an identification in the interests of a fair trial. Miles CJ expressed the view that the Victorian approach was the preferable one and should be followed in the ACT. He returned to the topic in R v Maladinovic (1992) 109ACTR 11 when he said at [15]:
There is seen to be a difference in approach between the New South Wales and the Victorian courts. To the extent that there is a difference, the courts in this Territory prefer the Victorian approach. That is to say, evidence of voice identification will be admitted if it is relevant, but the court will be astute to exclude such evidence if its admission would deprive the accused of a fair trial. The comparison might be made with visual identification usually the issue of visual identification arises in a situation where a person with no previous familiarity with the accused identifies a person who is otherwise established to be the accused as the person seen by the witness in circumstances tending to link that person with the crime. Sometimes voice identification is directed to a similar situation.
Furthermore, in Festa, consideration was given by the High Court to the admissibility of voice identification. In that case a witness identified a voice on the basis of six words. The Court stated at [84]:
The risk of mistake in identifying a voice is at least as great as in identifying a person. The reliability of voice identification varies with such factors as the length and volume of speech heard, the witness's familiarity with the accused's voice and the time elapsing between the occasions when the witness heard the voice of the perpetrator and the voice of the accused. They are among the factors that in many cases will warrant consideration by the jury and require adequate directions from the trial judge. In this case, the trial judge emphasised that Mr James' voice identification was "based on a few words which he said he'd previously heard a woman speak and a few words that he heard [Ms Festa] say in the precincts of that Court". Read in the context of the more general directions that he gave, the directions concerning this evidence were adequate.
In the case before me there is the additional fact that the accused was said by Mr Reid to have the distinctive vocal feature of a soft voice. As I understand the evidence to be led in this case the jury will have the opportunity to hear the tape recordings of the voice of the accused and they will be well able to judge for themselves whether or not Mr Reid’s statement as to his identification of the voice of the accused is credible or not.
In my view, both the visual and the voice identification by Mr Reid can be tested adequately in cross-examination before the jury. Likewise the police photographs of a Ruger .22 as being similar to the one brought to Mr Reid’s shop can also be tested adequately in cross-examination. Matters of specific criticism referred to by Mr Stanton in his submissions which go to reducing the weight of the evidence are not only capable of being fully explained by counsel to the jury, but will also be incorporated by me in a specific warning to the jury carrying the weight of judicial authority. In such circumstances I am firmly of the view that the probative value of the evidence outweighs any unfair prejudice to the accused.
Finally, it is appropriate to observe that in Eastman v The Queen, the Full Court said at 104:
The question of the identification of the appellant made by both Mr Webb and Mr Reid were important aspects of the Crown case. Their evidence was the subject of detailed and careful direction by the trial judge as required by s116 of the Evidence Act. The jury was reminded that the identifications were vigorously contested by the accused, and it was given a strong warning on the general dangers of convicting on disputed evidence of identification. The jury was then taken by the judge through the evidence first of Mr Webb and then of Mr Reid. After reminding the jury of the evidence, the arguments of the Crown and the appellant in relation to the evidence were summarised, and the judge pointed out the features of the evidence of each of the witnesses that might reasonably be regarded as undermining the reliability of their identification evidence.
Peter Reid
I turn now to consider the objections to the evidence of Peter Reid. Peter Reid gave evidence at the first trial but the accused who was unrepresented at the time declined to cross-examine him. As stated above, Peter Reid is the son of Dennis Reid. Peter Reid was present when a man came into his father’s shop seeking to sell a gun. Peter Reid was aged 16 years at the time. He gave evidence at the first trial that he was working with his father during his school holidays. He was unsure when that was in relation to the Winchester murder. He recalled a man coming in and pulling a rifle out of a blanket. He heard his father say “This rifle’s stuffed, mate, you know”.
Peter Reid heard a discussion about a silencer. As the person left, his father said to him, “He looks a bit sus, just go and grab his rego”. He said that he gave the person a bit of time to leave before he went out. He then went out and saw a car “sort of driving around the corners of the other cars”.
He said he recalled it was a blue car. He said that he was shown photographs by police of a number of people, but he was unable to recognise anybody. He was also shown a book of photographs of cars. He thought he identified four cars as possibilities. The car he saw was a sedan. He did not see the registration.
As is apparent from the above two paragraphs, the evidence of Peter Reid is not evidence of identification of the accused. At its highest it is evidence which supports the evidence of his father that a person came into the shop and stated that he had a Ruger .22 rifle to sell and that his father told the person that the rifle was “stuffed”. That evidence is clearly admissible as part of the prosecution circumstantial case.
However the defence is critical of the evidence of Peter Reid relating to the colour of the car. The evidence of Dennis Reid is that he had asked his son Peter to run out and check on the man’s car because he was “suspicious”. That statement was first made to police on 12 November 1991 after Dennis Reid had told police that he remembered having done that after attending the first inquest and hearing from another witness about having seen a blue car outside her home. On the same day, Peter Reid told police that he left the shop by the back door and went down an alleyway and turned to look at a car park. He saw a car driving through the other cars but never got a good look. He saw only one car moving. It was a small car. He was about 100 yards away and he did not remember the colour of the car. He was then shown a photoboard of motorcars, one of which was a photograph of the accused’s blue Mazda registered number YMP028. At first he pointed out a blue and white two toned Datsun which he said was similar. He then pointed out another car, a pale blue Galant that he said was ‘like it’ although he stated that the car that he had observed did not have roof racks.
Clearly enough the evidence of Peter Reid does not amount to identification of the accused’s motor vehicle as is contended for by the prosecution. However the evidence is relevant and admissible as a circumstantial fact in my view and there is no reason to say that its admittedly limited probative value is outweighed by any unfair prejudice.
Tadaeus Malachowski
The prosecution’s Amended Case Statement asserts that Mr Tadaeus Malachowski states that as at 31 December 1988 he lived in Derrima Road, Queanbeyan which is the same street where Mr Klarenbeek lived. On 31 December 1988, and on 1 January 1989, he saw a blue Mazda sedan parked in the street, in reasonably close proximity to Mr Klarenbeek’s house. On 1 January 1989, he also saw a European/Australian man, about 35 years old, wearing a green jacket, about 5’ 10”, thirteen stone, walk up the street carrying a rifle. He said the man was not wearing glasses and had brown hair that went down to his collar.
Mr Malachowski did not give evidence at the first trial. However, he did give evidence at the coronial inquest on 23 November 1990. He said that he had been interviewed by Sergeant John Lawler in September 1990. He said that his first contact with police occurred in July 1990 in consequence of a note on a card that was left earlier in the letterbox of his mother’s house in Derrima Road in Queanbeyan. In essence his evidence was in accordance with the summary from the Amended Case Statement referred to above. He was not cross-examined at the inquest as the accused was unrepresented at that time.
Defence submissions in relation to Tadaeus Malachowski’s evidence
The defence submission in relation to the evidence of Mr Malachowski is first that as the prosecution did not call him at the first trial it “should not now seek to mend its hand”. It is further submitted that the evidence is not probative, or in any event should be excluded pursuant to ss 135 and 137 of the Act and/or the residual common law discretion. It is submitted that the evidence of Mr Malachowski has no or very little probative value in terms of any circumstantial evidence relevant to the identification of the accused. In support of that contention the defence relies upon the facts that he was not asked to identify the accused from the photoboard and that his record of conversation with police took place more than 20 months after the murder of Mr Winchester. Furthermore reliance is had on the fact of Mr Malachowski having given a description of the person he saw which was, it is submitted, “markedly different” from Mr Eastman. He was shown photographs of vehicles which included Mr Eastman’s car and his response was that all of the cars he saw in the photographs looked “too new”.
Prosecution submissions in relation to Tadaeus Malachowski’s evidence
The prosecution response is that a number of relevant matters emerge from the evidence of Mr Malachowski.
First, the fact that he gives evidence of seeing a blue Mazda on two separate days near to the Klarenbeeks’ house is relevant, as is the fact that he saw a blue car there on 31 December 1988, the day that Mr Webb says he saw a man enter Mr Klarenbeek’s house. According to Mr Malachowski he saw the car again on 1 January 1989. On that day the accused withdrew $200 from an ATM. Several days later when Mr Webb returned, the gun had been sold. Mr Malachowski described the car as being in good condition. He saw the butt of the rifle which was wooden. He observed that the person holding the rifle was wearing a green jacket. This fits in with the evidence of the accused owning and wearing a green jacket.
As to the argument that there is some unfairness in the prosecution calling Mr Malachowski when he was not called at the first trial, the learned prosecutor submits that it would be “a novel proposition to say” that the prosecution cannot add a witness on a retrial. I agree.
In my view, the evidence of Mr Malachowski is probative. It is not direct evidence of the identity of the accused, Mr Malachowski having made it clear to police and at the inquest that he could not identify the accused. However, his evidence is relevant in other ways in a strands in a cable type circumstantial case such as that before me and it is probative in that regard. Any prejudicial effect can be addressed by appropriate directions at trial if necessary. I am satisfied that the evidence of Mr Malachowski is relevant, probative and admissible.
Mercia Kaczmarowski
I turn now to the objections raised by the defence in relation to the evidence sought to be led in relation to Mercia Kaczmarowski who is now deceased. The prosecution now seeks to rely upon her previous representations pursuant to s 65(3) of the Act. Ms Kaczmarowski gave evidence at both the committal and the first trial.
At the inquest Ms Kaczmarowski gave evidence on 3 December 1990 that she lived in Derrima Road, Queanbeyan as at 31 December 1988. She adopted a statement made by her to police on 19 September 1990. She also gave evidence that police were first in contact with her on ANZAC Day 1990.
Subsequently she gave evidence at the first trial on 21 June 1995. At trial Ms Kaczmarowski marked a map with an ‘X’ as to where her house was. She was shown some photographs of her house and the general area which became Exhibit 112. She said that she was at home with a friend who was staying with her on 31 December 1988. She went shopping around 12:30 pm and returned around 1:45 pm. On her return she saw a car parked under the big tree outside her house. It was a very quiet day and no-one was around so it surprised her that a car was there. It was new, but it had an interesting bumper bar. It had a silver bumper bar but it had rubber around it which was unusual. After 2 pm she heard what she took to be the boot of the car close and she “vaguely saw” someone get into the car and drive off. The registration number of the car also took her attention as it was a new style number plate for the ACT. In September 1990 a Detective Cotterill showed her a folder containing a number of photographs of various makes and colours of vehicles. She identified one of those cars as being similar to the one she saw.
Defence submissions in relation to Timothy Smith’s evidence
The first submission made by Mr Stanton relates to the temporal connection between the matters stated by Mr Smith and the date of their happening. He submits that all of the well-known frailties of identification evidence are relevant to an identification made over three years after the events in question. Mr Stanton submits that the prosecution cannot look to other evidence to buttress the credibility or the reliability of Mr Smith, and that the correct approach is not to look at other evidence that may tend to prove the asserted fact, but to look to factors that bear upon the reliability of the representation at the time that it was made. I accept that that is so.
In the end result and while I accept the argument of Ms Campbell that there are good reasons to say why Mr Smith may have remembered the matters to which he referred in his statement, upon which the prosecution seeks to rely, at the time that he made those representations, I am concerned that the temporal gap between the events of which he spoke and the making of the representations is as long as it is. The test to be applied is an onerous test. I must be satisfied that there is a high probability that the representations are reliable. In the case of Mr Smith I am unable to say that I consider that the circumstances of the making of the representations are such that I can conclude that it is highly probable that they are reliable and for that reason I rule that the representations sought to be relied upon by the prosecution pursuant to s 65(2)(c) of the Act are inadmissible.
George Hadjitofi
The defence submits that the evidence of George Hadjitofi should be excluded pursuant to ss 135, 137 and/or 138 of the Act.
The prosecution’s Amended Case Statement refers to evidence that in January 1988, Mr Hadjitofi advertised some shotguns for sale in the Canberra Times. It is asserted that the accused attended to inspect the firearms and arrived on foot, informing Mr Hadjitofi that he lived nearby. At the time Mr Hadjitofi lived in Kaleen and the accused lived in Reid. Mr Hadjitofi showed the person, whom the prosecution assert is the accused, a number of firearms but a sale did not eventuate as the accused refused to pay the amount requested. Mr Hadjitofi’s son followed the person when he left the property on foot and observed that the person had parked his car a few streets away.
Mr Hadjitofi made a statement to police on 19 November 1991. He made a second statement on 11 May 1995.
In his first statement Mr Hadjitofi said that he owned a number of shotguns which he advertised for sale early in 1988. He received only one enquiry in response to the advertisement and that was from a man who telephoned him on the day of the advertisement and asked about the price of the shotguns. Mr Hadjitofi gave the man his address but he did not come around to his house. The man telephoned again a few days later and said he could not come around after the first time he called but enquired as to whether he might come around that day. The man came around. He asked to see a rifle but Mr Hadjitofi said he had only shotguns for sale. Mr Hadjitofi showed him a shotgun. The man asked if the shotgun was automatic? Mr Hadjitofi told him the shotgun was double barrelled and he showed the man how the gun broke and how to load it. Mr Hadjitofi asked the man if he had used a gun before and he said, “No”. Mr Hadjitofi asked him why he wanted to buy the gun. He said to protect his family. Mr Hadjitofi offered it to him for $300. The man said he wasn’t interested in a shotgun. He was interested in an automatic rifle. However, he offered $250 for the shotgun but Mr Hadjitofi would not sell it for that.
Mr Hadjitofi formed the view that the person was “suspicious”. He did not know anything about guns. The man said he wanted a gun to protect his family and Mr Hadjitofi felt he was “very cold” and “nervous”. In consequence of that, Mr Hadjitofi called his son Andrew to get on his bike and follow him to where he lived.
Mr Hadjitofi provided a description to police of a man 165 to 170 centimetres tall, who was wearing clear glasses, with short brown hair, light coloured and a bit thin on top. He was clean shaven, he had a flabby body and was wearing a yellow coloured shirt.
Before making his first statement and on or about 8 November 1991, Mr Hadjitofi was watching the evening news and he saw the man who came to his house and looked at the shotgun. He said he was positive it was the same man. On 19 November 1991, police came to his house and showed him a photoboard which had 12 colour photographs of male persons. After looking at the photographs he was “certain” that the man who came to his house was No 6, although he said that he did not remember him having a moustache.
Mr Hadjitofi gave evidence at both the coronial inquest and at the first trial.
In giving evidence at the inquest, he confirmed that he had placed the advertisement in The Canberra Times on 23 January 1988. He confirmed what he had said in his statement of 19 November 1991. He said that the person who attended at his house was wearing “a yellow shirt with a stripe”. In his statement of 19 November, he had merely described the shirt being worn by the man as a yellow coloured shirt with a collar, buttoned up at front, a summer shirt with short sleeves. He said that the person in the photograph that he selected, was wearing the same shirt as the person who came to his house.
Mr Hadjitofi gave evidence at the first trial generally consistent with the evidence he gave at the inquest and with what he said in his first statement. He was not cross-examined by the accused who, at that time, was unrepresented.
The objection to his evidence is first that the use of the photoboard was improper given that Mr Hadjitofi had described the man who came to his house as wearing a yellow shirt and the accused was the only person appearing on the photoboard who wore a yellow shirt. It is submitted on behalf of the accused that the evidence of Mr Hadjitofi should not be admitted pursuant to s 138 of the Act because the photoboard composition was unfair and improper. In this regard Mr Stanton relies upon Pitkin, R v Blick [2000] NSWCCA 61; 111 A Crim R 326 (‘Blick’) and Knight v Brown [2004] ACTSC 35 (‘Knight’).
In Pitkin the High Court (Deane, Toohey and McHugh JJ) said at [12]:
The use of photographs of suspects by law enforcement agencies for the purpose of identifying an offender is a necessary and justifiable step in the course of efficient criminal investigation. Nonetheless, it is attended by some danger of consequential and unfair prejudice to an accused. 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. 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 …. by the police are photographs of likely offenders.
In Blick the victim of an armed robbery described the offender to police as having a goatee beard, and was then shown a photoboard of twelve photographs, only one of which was a photograph of a person with a goatee beard, being the appellant. The Court of Appeal held at [28] (per Sheller JA with whom James and Dowd JJ agreed) that this significantly prejudiced the appellant, saying:
…. to show [the victim] a group of photographs in which only one was of a man with a goatee beard, when that was an identifying factor in [the victim’s] mind, is, in my opinion, little better than showing him only one photograph, the photograph of the appellant. The prejudice to the appellant was both unfair and very considerable ….
In the case of Knight the offence related to an incident when a male person grabbed money from the hand of a victim outside a restaurant. The victim described the offender as having shoulder length red hair and a goatee beard. Subsequently the victim was shown a photoboard which included a photograph of the suspect. Two issues arose, the first being that the victim was advised by police that the photoboard did contain a photograph of the suspect. In addition to that matter there was only one person with distinctive red hair, that being the appellant. Connelly J stated at [22]:
It seems to me that the fact that the photo board identification process …. contained photographs of only two persons with what could be said to be red hair, and only one person, the appellant, with strikingly red hair, when red hair was the principal characteristic mentioned by the victim to the police, makes it unsafe and unsatisfactory to have relied on this evidence to reach a conclusion, beyond reasonable doubt, that the appellant was the offender.
Furthermore, it is submitted that the circumstances whereby Mr Hadjitofi recognised the accused from news coverage in November 1991, nearly three years after the man had come to his house to look at his shotguns, renders the evidence defective as it is infected by displacement.
Gabriella Hadjitofi
Although the Amended Case Statement filed by the prosecution does not rely upon the evidence of Gabriella Hadjitofi, it is, perhaps, appropriate to deal briefly with it as both the defence and the prosecution have made submissions as if she is to be called to give evidence.
Mrs Hadjitofi made a statement to police on 20 November 1991 after she and her husband saw the accused on television. Her statement was made at her place of work at the Civil Aviation Authority. In her statement she said that she remembered a man coming to her house as result of an advertisement placed in the Canberra Times by her husband. She remembered that he asked if there was an automatic rifle for sale. She gave quite a detailed description of the man, he being about 170 cm tall with a large build, a big stomach, straight hair brushed back, sort of brown and blonde but short and a bit bald on the top. He was wearing reading glasses. She thought he was clean shaven. She described him as wearing a yellow shirt, open at the neck and short sleaved. He spoke very softly. She also stated that ‘some time in 1988’ she had seen the man subsequently at the Civil Aviation Library. At the time she was employed by the Civil Aviation Authority. She recognised the man as the same man who had come to her house looking to purchase a firearm. She said he was wearing the same yellow shirt on that occasion. She said that on Friday 8 November 1991 she was watching the news on TV and saw film of the man. She said ‘when I saw the film of this man I recognised him as the man who had come to our house …. to buy the gun’. She said ‘I am very sure that the man I saw on TV is the man who tried to buy a gun from George’.
Mrs Hadjitofi gave evidence at the first trial. As with her husband, the evidence of Mrs Hadjitofi was not challenged at trial as the accused declined to cross-examine her. In essence, Mrs Hadjitofi’s evidence is similar to that given by her husband. At the trial she said that she recalled her husband having a number of shotguns for sale in early 1988. She recalled him advertising them for sale in The Canberra Times. She recalled the man who came to the house.
The arguments advanced by the defence in relation to Mrs Hadjitofi’s evidence are the same as those advanced in respect of her husband.
First that the photoboard identification was improper on the basis that the accused was the only person in the photographs who was wearing yellow shirt and secondly, the displacement effect of the identification of the accused as being the same person who came to the house as the person she saw on television a considerable time later.
In response to the defence submissions in respect of both Mr and Mrs Hadjitofi the prosecution submits that there is no impropriety on the part of police. It is argued that the photoboard in question was the photoboard used a number of times previously by police in their interaction with other witnesses. It is argued by Mr Thangaraj that ‘it was not put together deliberately to have a yellow shirt on Mr Eastman’. It is argued that Mr and Mrs Hadjitofi were each shown the photoboard on the same day as they were interviewed and thus it is clear that the photoboard had been prepared in advance of the interview.
Secondly, reliance is placed by the prosecution on the fact that Mrs Hadjitofi was spoken to on a separate day and in a different place from her husband and that before she was spoken to, although the same photographs were used as had been shown to her husband, the order of them was changed around on the photoboard, thus it is submitted that the evidence was not obtained improperly nor in consequence of an impropriety.
Furthermore, it is submitted by Mr Thangaraj that the reliance by the defence on the displacement effect is misconceived. He submits:
Now, both witnesses firstly say they recognised Mr Eastman from the media and their home. Now, if the displacement effect works in the way my friend wants and that's a barrier, then in every high profile case that would operate. Police, as we know, deliberately when they charge a high profile person - for example, with historical sexual assault matters - they're looking to motivate complainants who other - I mean, there are pros and cons of that approach, of course. Now, if a complainant then can't come along and say, "That's the person that did it to me" because they've seen the person in the media, there would be very serious public policy issues if that was correct and permanent stays left, right and centre. That's not the position.
Conclusions in relation to the evidence of Mr and Mrs Hadjitofi
I accept the submission of Mr Thangaraj that use of the photograph of the accused wearing a yellow shirt was not by reason of any impropriety on the part of police. More likely, as he submits, it came about because the photoboard which included the photograph accused was the photoboard that the police had when they went to interview Mr and Mrs Hadjitofi. Furthermore, although there is no evidence one way or the other, it is possible that the police were not at that time in possession of any other photograph of the accused other than the one of him in a yellow shirt. Accordingly, I accept that there is no evidence of impropriety of the nature that would justify my exclusion of the evidence of the photoboard identification under s 138 of the Act.
However that said, there are reasons to be concerned about the fact of the identification being of a photograph of the accused in a yellow shirt. It is apparent from all of the material before me that the colour of the shirt was of some significance to Mrs Hadjitofi and even more so to Mr Hadjitofi. As stated above Mr Hadjitofi told police on 19 November 1991 that the man was wearing a yellow coloured shirt with a collar and was buttoned up at the front. He described it as a summer shirt with short sleeves. It is apparent that the shirt worn in the photograph of the accused which Mr Hadjitofi selected from the photoboard is yellow but with longitudinal stripes down it. Mr Hadjitofi gave evidence on 4 December 1992 at the Coronial Inquest that the accused was wearing ‘a yellow shirt with a stripe’. He said ‘it was thin stripes …. But it was clear [sic] yellow colour’. He was then asked if there was anything he wanted ‘to add or change in relation to that description of the man’ to which he answered:
Excuse me, exactly the same shirt he came to my house, I saw him there, on the news on the television. I recognised that person on the television, it was on the news.
He was then asked:
The shirt he was wearing there was the shirt he'd worn to your house?
To which he answered:
Yes, when he was on the new [sic], Mr Winchester on the news on the television. I recognised that person and I called my wife ….
Later in the course of giving evidence at the Coronial Inquest, Mr Hadjitofi was taken to his identification of the accused upon looking at photograph number 6 on the photoboard. He was asked whether his signature appeared on the photograph, to which his answer was:
Yes, exactly the same shirt.
He was then asked:
Exactly the same shirt?
To which he answered:
Yes, I don't remember that moustache, anyway.
Later he was asked:
You have no doubt that that's the man that came to buy a gun from your house?
To which he answered:
That's the shirt he came in.
At this stage the Coroner intervened and said:
And you are saying you reckon that's the same shirt?
Answer:
Yes.
The Coroner then asked:
That you saw when he came to visit?
Answer:
Yes.
Counsel then asked the following question:
And you're saying also that the person you saw on television was wearing a shirt like that as well, that’s shown in photograph number 6?
Answer:
Yes, I do, on the television he was sitting on the bench and on the front of the car, one Falcon, I don't know, it was in Civic, I don't know, he was on the television.
Mrs Hadjitofi also gave evidence at the Coronial Inquest. The issue of the yellow shirt also figured prominently in her evidence at that time. She gave evidence of an occasion subsequent to the attendance of the person at her home when she saw the person at the Civil Aviation Authority library where she worked. She said:
I wanted to make sure again that he was the same person who came to my place, so I went and had another look to make sure, and I was sure that it was him because he wore the same shirt as he came to my place, it was a yellow shirt, and I don't know for how long he stayed. So I went back to my work because he was on the photocopier and where I was working it was at the back.
Subsequently she was asked what ‘aspect’ of the man she could see on the first occasion that she saw him. She was asked:
Could you see the front of his face, or the back of his head, or what?
Her answer was:
The back. I can see his back because he was photocopying on this side, and then ‑ you see, the photocopier was there and he was photocopying and I passed behind him, but I can see the face on looking on this side. I recognised the shirt.
At the conclusion of her evidence she was asked further questions by counsel assisting the coroner and gave the following answers:
Looking at this photograph, if you would, the shirt that the person in photograph number 7 appears to be of a yellow type of stripes. Was that the type of shirt, or not?---No.
No?---It was a plain yellow.
Plain yellow?---Yes, plain yellow.
As stated above, although I do not consider that the use of the photograph of the accused wearing a yellow shirt on the photoboard shown to Mr and Mrs Hadjitofi came about through impropriety or improper conduct on the part of the police, it is nevertheless a matter of concern. As is apparent from the evidence given at the Coronial Inquest, the shirt played a significant part in the mind of Mr Hadjitofi when he saw the accused on television wearing, he said, the same shirt. In that sense the displacement effect may well have applied when he then came to look at the photoboard. Likewise the shirt was of significance to Mrs Hadjitofi, particularly in circumstances where she claims to have seen the accused in the same shirt at her place of employment. Whilst the evidence of the identification of the accused by Mr and Mrs Hadjitofi is undoubtedly probative, I consider there is significant danger that the evidence of the photoboard identification may be unfairly prejudicial to the accused. The question to be considered by me is whether the probative value of the evidence is outweighed by that danger. In that regard, and in consideration of the balance between those two factors, I must consider whether the problem arising by reason of the admission of the evidence may be sufficiently ameliorated by appropriate directions to the jury.
In the end I do not consider that a direction to the jury that they should exercise considerable caution in accepting Mr and Mrs Hadjitofi’s photoboard identification evidence by reason of the fact that the only person on it wearing a yellow shirt is the accused, will be sufficient to remove the risk of prejudice caused by the fact that, whether consciously or unconsciously, the Hadjitofis may well have selected that photograph by reason of the overwhelming similarity of the colour of the shirt rather than any other identifying feature.
After having given the matter careful consideration, I am of the view that the probative value of the photoboard identification of the accused by Mr and Mrs Hadjitofi is outweighed by the danger of unfair prejudice to the accused. Accordingly I am constrained under s 137 of the Act to exclude the evidence of the photoboard identification of the accused by Mr and Mrs Hadjitofi.
ORDERS
Accordingly the orders to be made in consequence of this ruling are as follows:
(a)The evidence of Mr Raymond Webb is admissible.
(b)The evidence of Mr Dennis Reid is admissible.
(c)The evidence of Mr Peter Reid is admissible.
(d)The evidence of Mr Tadaeus Malachowski is admissible.
(e)The evidence of Ms Mercia Kaczmarowski given at the first trial on 21 June 1995 together with documents tendered through, or shown to, her in the course of her giving evidence is admissible pursuant to s 65(3) of the Act.
(f)The evidence Ms Anna Newcombe is admissible.
(g)The evidence of Ms Virginia Hansen is inadmissible.
(h)The representations made by Mr Andrew Ross and contained in the advertisement in the Canberra Times dated 19 November 1988 and in a statement made to police on 3 October 1989 are admissible pursuant to s 65(2)(c) of the Act.
(i)The representations of Mr Timothy Smith sought to be relied upon by the prosecution pursuant to s 65(2)(c) of the Act are inadmissible.
(j)The identification evidence of Mr George Hadjitofi is inadmissible.
(k)The identification evidence of Mrs Gabriella Hadjitofi is inadmissible.
| I certify that the preceding two-hundred and thirty-nine [239] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Kellam. Associate: Date: 6 February 2018 |
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