R v Evans
[2020] ACTSC 197
•25 May 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Evans |
Citation: | [2020] ACTSC 197 |
Hearing Date: | 25 May 2020 |
DecisionDate: | 25 May 2020 |
ReasonsDate: | 22 July 2020 |
Before: | Burns J |
Decision: | [2], [15]-[16] |
Catchwords: | CRIMINAL LAW – Application – identification evidence – admissibility – photo board identification by the complainant – consideration of s 235(1) of the Crimes Act 1900 (ACT) – whether evidence obtained by police undertaken in contravention of Australian law – consideration of probative value of evidence – whether desirability of admitting the evidence outweighs undesirability of admitting the evidence |
Legislation Cited: | Crimes Act 1900 (ACT) ss 23(1) 32(2), 34, 38, 235(1) |
Parties: | The Queen (Crown) David Micheal Evans (Accused) |
Representation: | Counsel K Lee (Crown) J Moffett (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) McKenna Taylor (Accused) | |
File Number: | SCC 156 of 2019 |
BURNS J:
The accused, Sharon Stott and David Evans, were arraigned on 25 May 2020 on an indictment dated 23 July 2019 containing four counts. These counts were (omitting formal parts):
· Count 1: That on 18 January 2019 they unlawfully confined another person, namely DT, contrary to s 34 of the Crimes Act 1900 (ACT) (the Crimes Act) by virtue of s 45A of the Criminal Code 2002 (ACT) (the Criminal Code).
· Count 2: That on 18 January 2019 they intentionally inflicted actual bodily harm on DT, contrary to s 23(1) of the Crimes Act by virtue of s 45A of the Criminal Code.
· Count 3: That on 18 January 2019 they made a demand of another person, namely DT, with threat to endanger the health, safety or physical wellbeing of DT, contrary to s 32(2) of the Crimes Act by virtue of s 45A of the Criminal Code.
· Count 4: That on 18 January 2019 Sharon Stott did attempt to take away or detain a person, namely DT, with the intent of holding him for an advantage contrary to s 38 of the Crimes Act by virtue of s 44 of the Criminal Code.
The accused had previously filed notices electing for trial by judge alone pursuant to
s 68B of the Supreme Court Act 1933 (ACT). That trial was due to commence on
25 May 2020. At the commencement of the trial, counsel for Mr Evans raised a preliminary objection to identification evidence which the Crown proposed to lead as part of its evidence in the trial. The Crown proposed leading evidence of photo board identification by the complainant, DT, of Mr Evans as a person allegedly involved in the events giving rise to the charges. It was unfortunate that this issue was not raised for determination prior to the commencement of the trial. Evidence on the voir dire was led by the Crown and by Mr Evans on 25 May 2020, at the end of which I reserved my decision until the following morning, 26 May 2020. On the morning of
26 May 2020, I indicated that I would admit the impugned evidence, and I would give my reasons for so doing at a later date. These are those reasons.
For the purposes of the application it was not disputed that on 1 March 2019, DT was shown a photo board on which there was a number of photographs of male persons of similar appearance and was asked whether any of the photographs depicted a person who he alleged assaulted him on 18 January 2019. It was accepted that one of the photographs was a photograph of Mr Evans. It was further accepted that DT identified the photograph of Mr Evans as a photograph of the person who assaulted him on
18 January 2019.
The basis for the application that the evidence of DT’s identification of the photograph of Mr Evans as a photograph of the person who assaulted him on 18 January 2019 was that there had been a breach of s 235(1) of the Crimes Act. This section provides:
235 Identification by means of photographs
(1)If a suspect is in custody in respect of an offence or is otherwise available to take part in an identification parade, a police officer investigating the offence shall not show photographs, or composite pictures or pictures of a similar kind, to a witness for the purpose of establishing, or obtaining evidence of, the identity of the suspect unless —
(a) the suspect has refused to take part in an identification parade; or
(b) the holding of an identification parade would be—
(i) unfair to the suspect; or
(ii) unreasonable in the circumstances.
It was submitted that police had breached s 235(1) by showing photographs to DT, including a photograph of Mr Evans, in circumstances where Mr Evans was in custody and had not refused to take part in an identification parade. It was also submitted that the holding of an identification parade would not have been unfair to Mr Evans and it would not have been unreasonable in the circumstances to hold an identification parade.
The Crown called evidence from Detective Senior Constable Bradley Pumphrey, a member of the Australian Federal Police who was, as at 6 February 2019, attached to criminal investigations at the Woden Police Station in the ACT. Detective Senior Constable Pumphrey was the informant in the prosecution against Ms Stott and
Mr Evans. On 6 February 2019, he attended the Alexander Maconochie Centre (the AMC) at Hume in the ACT in order to speak to Mr Evans about these charges. He intended to offer Mr Evans the opportunity to participate in an identification parade and to participate in a record of interview. Detective Senior Constable Pumphrey went to the admissions area of the AMC and spoke with Corrections staff and told them he was there in order to speak to Mr Evans. Detective Senior Constable Pumphrey remained in the admissions area while Corrections staff went to speak to Mr Evans. Corrections Officer Bryce Wilson later told Detective Senior Constable Pumphrey that Mr Evans was refusing to leave his accommodation to speak to him. Detective Senior Constable Pumphrey formed the opinion that Mr Evans was refusing to speak to police, and that it would not be possible to conduct an identification parade. Detective Senior Constable Pumphrey testified that he believed that he had complied with the legislative requirements to offer Mr Evans the opportunity to participate in an identification parade before attempting photo board identification.
In cross-examination, Detective Senior Constable Pumphrey agreed that he never spoke personally to Mr Evans on 6 February 2019, nor did he speak to
Corrections Officer Wilson before that officer spoke to Mr Evans. His request to speak to Mr Evans was passed via radio by a Corrections Officer in the admissions area to Corrections Officer Wilson.
The Crown also called evidence from Senior Constable Russell Cupitt who accompanied Detective Senior Constable Pumphrey to the AMC on 6 February 2019. His evidence mirrored that of Detective Senior Constable Pumphrey.
The Crown called evidence from Corrections Officer Bryce Wilson who was on duty at the AMC on 6 February 2019. A copy of a statement prepared by
Corrections Officer Wilson dated 19 November 2019 was tendered without objection on the voir dire. The relevant portion of that statement is set out below:
On 6 February 2019 I was on duty. I was yard officer responsible for AU South wing.
David Evans was in AU South Cell 11 at this time. His ‘cell card’ was displayed on the front of his cell which includes his photograph, name, his date of birth and Prison Identifier.
I received a message from a fellow Corrections Officer, I cannot recall who that was, that there was a call from Admissions. This call requested that EVANS attend Admissions to speak with AFP officers. I cannot remember what time this occurred. This fellow Corrections Officer I refer to was also working in AU South (who received the call from a CO in Admissions).
I went to all EVANS’ cell. I said words to the effect “Mr EVANS I have AFP Officers in Admissions requesting to talk to you.” He replied “Nup. Not going.”
I said words to the effect “How about you go up there and tell them to their face you don’t want to speak with them?” EVANS replied words to the effect “Fuck off. I’m not going.”
EVANS cellmate was Dean REID. REID said words to the effect “why don’t you get your security team down here and drag him up?” REID and EVANS were both lying in their respective beds in the cell while this conversation was occurring.
I said to EVANS “I take that as a refusal?” EVANS replied “Yep.” I then closed the door. I left the yard and called CO2 Hamblin. I told him what had occurred during the conversation, recounting
whatthe conversation. I advised that EVANS had refused to come up.
In his evidence, Corrections Officer Wilson stated that he does not have the power as a Corrections Officer to force an inmate of the AMC to speak to police if they choose not to. In cross-examination, he accepted that he had the power, as delegated from the Director-General, to remove Mr Evans from his cell and take him to admissions to put him in front of police.
Mr Evans gave evidence on the voir dire that on 6 February 2019 he was an inmate at the AMC and was sharing a cell with “David Reed” (sic). Mr Evans agreed that on that day Corrections Officer Wilson came to his cell and told him the police were there to speak to him. He agreed that he told Corrections Officer Wilson that he did not want to speak to police. Mr Evans said that Corrections Officer Wilson did not specifically tell him the reason why police wanted to speak to him. Mr Evans said that if he had been told police wanted to speak to him to offer him the opportunity to participate in an identification parade, he would have spoken to the police and participated in the identification parade.
It was clear from the evidence of both Corrections Officer Wilson and Mr Evans that
Mr Evans was never informed that police wanted to offer him the opportunity to participate in an identification parade. It is not possible to describe Mr Evans’ refusal to speak to police on 6 February 2019 as a refusal to participate in an identification parade when Mr Evans was never specifically told that this was the reason, or one of the reasons, why police wanted to speak to him. There was no evidence that any request had ever been made directly to Mr Evans to participate in an identification parade which he then refused.
I was far from satisfied, however, that Mr Evans would have participated in an identification parade had he been told that the purpose of police wanting to speak to him was to offer him an opportunity to participate in an identification parade. Mr Evans made no enquiries of Corrections Officer Wilson regarding the reason police wanted to speak to him, nor did he ask Corrections Officer Wilson to make enquiries in that regard on his behalf. His response was simply a blanket refusal to speak to police. I was satisfied that it was improbable that Mr Evans would have agreed to participate in an identification parade.
I was satisfied that the identification evidence consisting of the identification of
Mr Evans’ photograph by DT as a photograph of the person who assaulted him on
18 January 2019 was obtained by police in contravention of an Australian law, being
s 235(1) of the Crimes Act. The question of the admissibility of the evidence depended upon the provisions of s 138(1) of the Evidence Act 2011 (ACT) (the Evidence Act), which provides:
138 Exclusion of improperly or illegally obtained evidence
(1) Evidence that was obtained—
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an
Australian law;
must not be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
I was satisfied that the probative value of the evidence was high. The identification by DT of the photograph of Mr Evans as the offender was a significant plank in the Crown case, which otherwise depended entirely on circumstantial evidence such as the location of DNA consistent with that of Mr Evans at the scene of the offence. I was satisfied that the evidence was important in the prosecution of Mr Evans. I also took into account that the charges against Mr Evans were serious charges, involving an allegation of violently attacking the complainant with a baseball bat. I was satisfied that the breach of s 235(1) of the Crimes Act was unintentional. It was never disputed that police went to the AMC on 6 February 2019 for the purpose of offering Mr Evans an opportunity to participate in an identification parade. The breach came about because of a problem in communicating that to Mr Evans. I was also satisfied that the photo board identification process was properly conducted in the sense that the photographs used were all photographs of male persons of similar physical appearance.
I was satisfied that the desirability of admitting the evidence outweighed the undesirability of admitting the evidence which had been obtained in the way in which was. For this reason, I exercised my discretion under s 138 of the Evidence Act to admit the evidence.
| I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: |
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