R v F, D
[2016] SADC 7
•3 February 2016
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v F, D
[2016] SADC 7
Reasons for Ruling of His Honour Judge Tilmouth
3 February 2016
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - NATURE OF DISCRETION - GENERALLY
Evidence of a police officer purporting to recognise the accused as an offender being chased by her, from police photographs previously seen by her, admitted as arising in the investigation process.
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - PHOTOGRAPHS - GENERALLY
Criminal Law Consolidation Act 1935 s 134, s 170(1); R v Hallam (1985) 42 SASR 126; R v Marks (1998) 72 ALJR 1134; Alexander v The Queen (1981) 145 CLR 395; Arthurs v A-G (Northern Ireland) [1971] NI 40; (1970) 55 Cr App R 161; Domican v The Queen (1992) 173 CLR 555; R v Carr (2000) 117 A Crim R 272; Mills v Western Australia (2008) 189 A Crim R 411; R v Wright (No 2) [1968] VR 174; R v MacDonald (2002) 168 FLR 232; Craig v The King (1993) 49 CLR 429; R v Sindoni (2011) 211 A Crim R 187; MacKenzie v The Queen (1996) 190 CLR 348; R v Hill (2005) 200 CCC (3d) 218, referred to.
R v Lovett [2006] VSCA 5; R v Goode [1970] SASR 69, applied.
R v Engel [1999] SASC 69; R v Nguyen (2007) 180 A Crim R 267, discussed.
R v F, D
[2016] SADC 7The issue
The accused is charged with aggravated serious criminal trespass in a place of residence under s 170(1) of the Criminal Law Consolidation Act, 1935 and theft under s 134 thereof. He moves to have certain identification or ‘recognition’ evidence excluded. The grounds as ultimately articulated by his counsel Ms Demertzis, are that the evidence in question is more prejudicial than probative, and as an adjunct proposition, no directions could possibly overcome or cure the prejudice. These reasons explain why the application must narrowly fail.
Underlying facts
On 2 September 2014 at about 8.40am, police attended a residence in Percy Street Seaton, in response to a report of a break-in at that address. Upon arrival at the scene, two officers on uniformed mobile police patrol heard two males approaching a side gate to the residence from within, seeing that one wore a black baseball cap and the other a red jumper. The prosecution case is that the accused was the male wearing the cap. The police later found various items of property taken from the residence on a lawn of the property. There is no forensic evidence linking the accused directly with the intrusion, such as fingerprints or DNA.
The two males almost immediately thereafter ran from the property in different directions. Senior Constable Mills observed the male in the red jumper scale fences and head South. She gave pursuit along Olive Street but lost sight of him on nearby Martins Road, after seeing him running in an Easterly direction into Clark Terrace.
Very soon afterwards she then saw a man walking, out of breath, towards her. So far as one can judge from the evidence, this was very roughly up to 800 metres from the Percy Street residence.[1] She described him ‘… as about 5’7”, 5’8”, … wearing a black cap, black hoodie and black Adidas pants’.[2] She thereupon asked him to stop as he ran past her heading East along Martins Road. She pursued him across Clark Terrace over a train line into Minns Street East where she lost sight of him.
[1] T16.7-15
[2] T8.20-23
The other man decamping the scene was apprehended later the same day and charged with the above offences, to which he subsequently pleaded guilty and was sentenced on 10 April 2015. The accused was not arrested until 28 January 2015. He declined to answer police questions.
The impugned evidence
Senior Constable Mills gave evidence on the voir dire. After giving the above description when asked ‘why did you stop him’ she answered:[3]
I recognised him as a local offender from our area and I could tell that he was puffing, like he’d been jumping fences, so I tried to get him to stop so – I was hoping to bluff him a little bit just say “I’m waiting for a dog” so he wouldn’t cross the path where the last person ran but he started running instead.
She added that this person:[4]
… ran in the same direction that the guy in red ran so he sort of went past me and I sort of tried to grab his arm as he went past.
[3] T8.28-33.
[4] T8.35-.37.
Questioned in-chief ‘How was it you recognised him’ she replied:[5]
AI didn’t 100% remember his name at the time. I looked at him and I recognised him from the photographs in our intelligence briefings as a local offender in our area.
QCan you explain what the intelligence briefings are.
AEvery day we get emailed a briefing which has people that have been arrested in the last 24 hours, people that have been spoken to over the last few weeks or people, if there has been a lot of offences in the area there will be a briefing about our - all our local offenders for that sort of thing and whether they have similar modus operandi.
[5] T9.2-13.
In a supplementary statement of 30 November 2015 SC Mills stated that:
On the 2nd of September 2014, when I was on Martin’s road and approached by the male, at the time I only recognised him as a person who I had seen repeatedly in daily intelligence briefings (DIBs), but at the time I could not recall his name. I knew that he resided in SEATON and had a brother who also resided in SEATON and I regularly get their names confused.
Whilst standing on the cordon [sic] on Alma Tce, WOODVILLE WEST, I heard the name ‘F’ over the radio. I phoned Western Adelaide Intelligence and requested they message me a photograph of ‘F,D’ who I believed was the male I had seen, but I wanted to confirm that I had not confused him with his brother ‘S’. I know that ‘S’ is a lot thinner in build than ‘D’ and that ‘D’ has a very round head with a solid neck. I am more familiar with ‘S’ and had never previously met ‘D’ in person, however they have facial similarities.
On seeing the image of ‘F, D’, I confirmed over police radio that ‘F, D’ was the male I had seen.
She added during her evidence-in-chief that she had ‘seen the person [she] recognised as the man in the black cap … at least nine to 15 times beforehand’,[6] that the last time she looked at an intelligent briefing was ‘maybe a month or two’ and that she was ‘not sure of the last time he actually appeared in one prior to … September 2014’.[7] She later added that she recognised ‘(M)ore his eyes and forehead … he’s got quite a round head with a thick neck’.[8] She conceded that when speaking to other patrols from the scene, she did not provide a name or state that she then recognised him.[9] And she further conceded knowing he and his brother ‘were both serious criminal trespass offenders’ in the area.[10]
[6] T10.2-.4.
[7] T10.33-.36, T11.29-.32.
[8] T13.18-.19.
[9] T13.29-.32.
[10] T14.19-.27.
SC Mills requested a ‘photo of the more solid ‘F’, which she received on an I-phone by SMS, ‘the most recent photo they had of … F, D.’ Upon receipt she advised ‘I can confirm that it is F, D’, as this photograph satisfied her he was the same person she saw in the black cap ten minutes earlier.[11] Mills accepted under cross-examination that at the point of first seeing him come from the property on Martin’s Road, she ‘didn’t have a name to put to the face’ and that she had not seen him in the flesh beforehand, but she had arrested him since.[12]
[11] T14.38-.15.24.
[12] T21.2-.11.
This evidence calls for several preliminary observations. First, no question of improper conduct arises, giving rise to the general discretion to exclude on that basis: R v Hallam,[13] R v Marks.[14] Second, at relevant times the police were clearly still well within the investigative stages of their inquiries. As such the use by the police of methods well suited to the investigation and detection of crime requires the court to balance the interests of the accused in securing a fair trial as against the interests of the efficient investigation and detection of crime by the police, a consideration that tends in favour of inclusion: Alexander v The Queen.[15]
[13] (1985) 42 SASR 126.
[14] (1998) 72 ALJR 1134.
[15] (1981) 145 CLR 395, 426, 430, 436.
Thirdly, the evidence is imprecise as to the distance and time period over which SC Mills had the man under observation from the time he emerged from the Martin’s Road house and as he passed her. Fourth, the evidence of general description, so far as it goes, is not inconsistent with the broad physical attributes of the accused. Fifth, it is obvious enough that if the evidence emerges before a jury as it has on the voir dire, there is a high degree of potential prejudice, because they will understand the accused is known to the police and speculate that he has a criminal record. Finally, this is no direct or positive evidence of identification or recognition of the offender. Even if accepted, it is merely circumstantial evidence that might entitle the jury to infer that he was an offender, because of proximity in time and place to the residence in question, together with the facts that one intruder was wearing a black cap and that this man was out of breath and may therefore have fled the scene in the manner observed by the police patrol.
Legal principles
The pivotal question for resolution in this instance is whether the strict rules of admissibility operate unfairly against the accused. Gibbs CJ sets out the operative principles in Alexander v The Queen:[16]
… 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 opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused. In a case such as the present it seems to me proper for a trial judge, in deciding how he should exercise his discretion, to take into consideration that it is the duty of police officers investigating crime to take every precaution reasonably available to guard against the miscarriages of justice that can occur, and have in fact occurred, because of honest but mistaken evidence of identification, and that for this reason “only in exceptional cases should photographs be used at a stage when some particular person is directly suspected by the police and they are able to arrange an identification parade or some other satisfactory alternative means whereby the witness can be asked directly to identify the suspected person.
[16] Above, 402-403.
There is however a well recognised and appreciable difference between evidence of identification strictly so called coming from witnesses unknown to an accused, and from those recognising an accused person, in which case a different warning is usually required: Arthurs v A-G (Northern Ireland).[17] In the former situation, the trial judge is obliged to warn the jury against the unreliability of identification evidence in the terms laid down by the High Court in Domican v The Queen.[18]
[17] [1971] NI 40; (1970) 55 Cr App R 161.
[18] (1992) 173 CLR 555.
The content of the warning in a recognition case necessarily depends on the particular circumstances, especially the degree of familiarity of the witness with the accused: R v Carr,[19] Mills v Western Australia.[20] In sum, the charge to the jury must direct attention to various matters relevant to the reliability of the recognition process that actually emerge in a given case: R v Wright (No 2).[21]
[19] (2000) 117 A Crim R 272, [61].
[20] (2008) 189 A Crim R 411.
[21] [1968] VR 174.
Another consideration is whether the witness might unconsciously come to the recognition process with ‘preconceptions’, to borrow a phrase coined in R v MacDonald,[22] and by too hastily jumping to conclusions, as pointed out in R v Lovett:[23]
[41] Difficulties of observation at the time a crime is committed frequently are just as great and the possibility of jumping to conclusions as to the identity of the miscreant with a person already known may likewise be just as great, albeit that there will ordinarily be no need for any subsequent formal identification process. What is required in every case will vary, the object in each being to avoid a miscarriage of justice which may flow from the failure to warn a jury of the danger arising from possible confusion or mistake. …
[22] (2002) 168 FLR 232, [26].
[23] [2006] VSCA 5.
Further considerations include the appearance of overconfidence identified in MacKenzie v The Queen,[24] and similarities of description, any special peculiarities of appearance, the length of time and walking distance over which the observation occurred, to borrow from some of the considerations referred to by Evatt and McTiernan JJ in Craig v The King,[25] as well as any other factors that may have affected SC Mills’ powers of observation in the exigencies: R v Sindoni.[26]
[24] (1996) 190 CLR 348, 373.
[25] (1933) 49 CLR 429 at 445-446.
[26] (2011) 211 A Crim R 187, [53].
Analysis
Counsel could not direct attention to any case directly in point. In so far as the short-comings in the identification process itself are concerned, there is no sufficient reason to suppose a trial Judge will be unable to compose suitable directions adequately drawing the frailties in the evidence to the attention of the jury.
There are some comparisons with the decision in R v Engel,[27] in as much as it concerned an identification by a police officer during an informal line-up in a nearby boarding house of a person he observed and chased from the vicinity of a robbery occurring some 90 minutes earlier. The evidence was held admissible as gathered during the investigative stage in the detection process.[28] The court considered the trial Judge adequately drew attention to the dangers in the evidence, which included the fact that the police officer never got very close to the man he was chasing, that his only face on view was when the man was on the roof of a carport some 15 metres away when the opportunity to observe occupied a second or less, that there were no distinctive features to enable a particularly reliable subsequent identification, and the limited nature of the line-up of residents of the nearby accommodation house in which the appellant was found.[29]
[27] [1999] SASC 69.
[28] Ibid [12].
[29] Ibid [19].
Another partially analogous decision is R v Nguyen,[30] in which police were permitted to identify various accused depicted in CCTV footage of an incident, based substantially on specialised knowledge acquired during their duties, involving beat policing and bike squad duties, during which they had met the appellants numerous times, on occasions in excess of half an hour in face to face contact. Of course the facts of this case are quite different. And in R v Hill,[31] a conviction was quashed after photographs of a robber were circulated to 400 police officers, two of whom purported to identify the accused, because too much of the robber’s face was covered to permit an accurate identification.
[30] (2007) 180 A Crim R 267.
[31] (2005) 200 CCC (3d) 218.
The real question here is whether the abject prejudice is capable of cure. It is in this respect that Nguyen is instructive. A central issue in that case was precisely the question of prejudice, in that the jury were necessarily informed the appellants were under regular police observation within the notoriously crime-ridden Cabramatta area of South-Western Sydney, from which the jury might infer they were of bad character or engaged in illegal activities.[32] The evidence was led however in a ‘careful way’ so as to avoid prejudice or potential prejudice.[33] That situation is not the same as this, nevertheless there is room for the evidence to be led in a relatively benign way so as to minimise the risk of prejudice. The short-comings in the physical attributes of the act of recognition can be fully explored by defence counsel without risking exposure of the evidence relating to the criminal past of the accused.
[32] Ibid [35].
[33] Ibid [38]-[39].
The issue of preconception is not so readily dismissed. Clearly SC Mills formed certain views as to the likelihood of the accused being the offender and this held the potential to cloud her judgement. It is however a necessary consequence of the way in which the incident progressed, so it is for the defence to make an admittedly difficult forensic decision whether to pursue it or not. It has to be acknowledged that if this particular aspect of the evidence was elicited, it would inherently convey the ‘rogues’ gallery effect, carrying with it the implication ‘the accused has a criminal record, perhaps even a propensity to commit a crime of the kind with which he is charged‘: Alexander v The Queen.[34]
[34] Above [409].
As such the discretion to exclude clearly arises and may often be, as it is in this instance, a delicately balanced one for reasons explained by Stephen J in Alexander v The Queen:[35]
… the way in which the exclusory discretion is exercised will no doubt be affected by the extent to which the particular evidence proposed to be led is likely to be prejudicial to the accused. In judging of this it is not only the evidence to be led that must be considered. It will also be relevant to take account of what prejudicial material the defence may be forced to bring out in cross-examination in its efforts to combat the evidence led. A court will necessarily bring to any consideration of the exercise of the exclusory discretion a full appreciation of the now well-recognized prejudicial consequences that may so readily flow from the reception into evidence of photo-identification.
Stephen J earlier explained, the solution lies in a compromise:[36]
Courts may discourage its use by police after the detection process has come to an end by treating that use as likely to disqualify a witness from giving evidence of the accused's identity: they may at the same time tolerate its intrusion into the trial evidence so long as its earlier use has been in the actual detection of crime.
It is just such a solution that the courts have applied, attempting to reconcile the interests of the accused with those of the community by differentiating between the detection and the evidentiary process. Photo-identification thus remains available as an effective aid in the detection of crime, but will tend to be excluded from the trial evidence unless its intrusion be justified by its earlier use having occurred in the detection process. Where it is not excluded from the trial evidence the accused obtains some protection against its prejudicial consequences by the existence of that exclusory discretion, dependent upon a balance of prejudice against probative value, always vested in trial judges, who will also, where appropriate, warn the jury of the particular dangers of this form of identification.
[35] Ibid [418].
[36] Above 410.
In this instance the evidence is ‘indispensable’, so that the ‘delicate task’ of determining what if anything should be said to the jury by way of warning clearly arises, and particularly that ‘the jury must not be led to the belief that the accused is known unfavourably to the police and therefore guilty’: R v Goode.[37] As Stephen J pointed out in Alexander,[38] evidence originating in the detection process ‘was tolerated’ as a necessary intrusion into trial evidence, but not when evidence of the kind at issue here was collected in the evidentiary stage of investigation. His Honour continued:[39]
The conclusion of the cases is, I think, that in addition to whatever warning may in any event be appropriate because evidence of identification is critical, the trial judge should also bear in mind the special need to prevent or counteract any particular prejudicial effect to which photo-identification may give rise. In some cases this may best be done by refraining from special comment lest it attract the jury's attention to prejudicial matter otherwise likely to escape its notice. Generally, however, some special warning should be given to the jury.
[37] [1970] SASR 69, 80.
[38] Above, 411-412.
[39] Above 413.
It is to be recalled that SC Mills was in the hot pursuit of an offender fleeing a crime scene, whom she had seen only minutes before actually in the final throes of committing an offence, so that the exigencies left few other options. There is no hint of illegality or impropriety. Furthermore, there was nothing more the police could do to enhance the cogency of the evidence. Having reached the conclusion that it was the accused she saw and having the photograph sent to her, necessarily meant that a subsequent photo board or identification parade would be infected by what was described in Alexander v The Queen,[40] as the ‘displacement effect’, and for that reason of little or no probative value, even if admitted.
[40] Above 409.
Conclusion and orders
It may on the one hand be acknowledged, as it must be, that the proposed evidence carries with it a distinct capacity to prejudice the accused on account of the ‘rogues gallery’ effect. On the other hand the evidence was secured as an inherent aspect of the detection process, gathered in compelling circumstances involving no impropriety whatsoever. A critical question for the jury to consider is the quality of the opportunity to come to a recognition of the accused in the first place. The next question for resolution is the danger of leaping to conclusions on account of SC Mills’ knowledge of his criminal proclivities.
On fine balance ‘the consequential need to balance the interests of the accused in securing a fair trial against the interests of the State in the efficient investigation and detection of crime by the police’; Alexander v The Queen,[41] dictates that the impugned evidence should be admitted, despite the prospect of consequential prejudice.
[41] Above 426 per Mason J.
Just what jury directions are required as to general reliability will depend on how the evidence emerges at trial, and particularly on the length of time and distance over which SC Mills had the offender in frontal view under observation. When it comes to dealing with the potential prejudice, much will depend on what defence counsel chooses to elicit in cross-examination, however on any view appropriate directions as to impermissible lines of reasoning will almost certainly be called for.
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