R v Gardner & Coates
[2003] VSC 152
•21 May 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1520 of 2003
| THE QUEEN |
| v |
| BRIAN LINDSAY GARDNER AND MICHAEL ALBERT COATES |
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JUDGE: | SMITH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 to 14 May 2003 | |
DATE OF RULING: | 21 May 2003 | |
CASE MAY BE CITED AS: | R v Gardner and Coates – Ruling 1 | |
MEDIUM NEUTRAL CITATION: | [2019] VSC 152 | |
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Crime – Identification evidence – Face image – Photographs - Admissibility
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M. Williams | Kay Robertson, Solicitor for Public Prosecutions |
| For Gardner | Mr J. Desmond | Legal Aid |
| For Coates | Mr P. Morrissey | Slades & Parsons |
DRAFT
HIS HONOUR:
Counsel for Coates has submitted that evidence of the attempts by Ms Geotze-thies to identify one of two men she saw getting into an alleged getaway car should be excluded as a matter of discretion either on the grounds that the probative value is outweighed by the prejudicial effect or that its admission into evidence would be unfair.
There were three occasions on which such attempts were made.
1.On 25 January 2002 not long after the original observation Senior Constable Hardiman, assisted her to create what is described as a face image on a laptop computer.
2.On 25 February 2002, at approximately 10:50 am, she attempted to identify the person in question from a photo folder containing 12 photos including that of the accused, being photo number 7.
3.On 25 February 2002, at approximately 3:10 pm, she again attempted to identify the person in question from the same photo folder.
A voire dire was held on the admissibility of this evidence.
The initial observation and description
Ms Goetze-thies in her initial statement, taken at about 11:10 am, gave a description of two men. One was wearing a balaclava. The other was not. She described the latter as slightly shorter, smaller than the first man and both of average build. The one without the balaclava had black or very dark brown hair cut short but not cropped "wasn't long off, collar". She described him as being approximately late 30's and approximately 175 cm. She said they were too far away and she could not see any distinguishing features. There was added to the statement , although not initialled by her, "However I may be able to identify the second male”. Cross-examined about this, she said that the sentence was not in her writing and she could not recall whether she noticed that it was put in the statement or not. She agreed that it was the fact that she entertained some doubts as to whether she could identify the bare headed man if given that opportunity later. Put that she foresaw difficulties in identifying them she said "initially, yes" . She agreed that the reason she foresaw difficulties was that she had a relatively brief view of him, he was not stationary, not looking straight at her, she had never seen him before, she was peeping with her head on the side out of the window and she was frightened.
Later on 25 January 2002 at approximately 1:05 pm, she made a further statement. In the course of that statement she said the male with the balaclava was the taller of the two. She described the shorter of the two (who she said drove the car away). She said that he "looked in his late 30’s to early 40s, Australian, Caucasian, fair complexion, maybe a little tanned, about 175 cm tall, medium build, dark brown or black hair which was short back and sides and I think straight. I think he had dark eyes, unshaven and maybe one day's growth that was dark."
Cross-examined further about her initial observations, she said she heard noises and at least raised and upset voices. There was obviously an incident going on and she quickly came to the conclusion that the two people she saw were fugitives. She said that she got a chance to see the face of the one without the balaclava when they came out of the lane and headed towards the vehicle and, while doing so, the one without the balaclava turned to the other. She could not recall whether he completely ceased motion. The other was moving towards the car. She had a three quarter to a full view of the bare headed man. She did not have a face-to-face look because he was making eye contact with the other person. She said that from the top of the lane to the passenger door was a distance of four to five paces depending on the length of the paces. Put to her that she saw the face for no more than two to three seconds, she said she thought it was longer, suggesting 30 seconds. Put to her that at the committal she had said 10 to 15 seconds she said she would need to check her statement but it was longer than two to three seconds. She then said it seemed longer because everything seemed to go slower. She said it seemed like a very long period. She said she could not categorically rule out that it was less than 10 seconds. She said her view was obscured from the time they got inside the car. She agreed it was a frightening episode. She said she was looking out the western panel of a bay window, bent over, peeping out. She agreed that the conditions were not ideal for making accurate observations. She said it had been a bright sunny morning but she could not remember whether it was bright and sunny at the precise moment of the observation.
In re-examination about the original observation, she was referred to photographs of the lane and house and said that she had a clear and uninterrupted view of the area crossed by the men because the tree in front of the house had been trimmed away from the house. She said that time appeared to go slowly. As to the car, she said it was parked just on the other side of the laneway from the house by the drain opening.
Evidence as to the face image
Ms Goetze-thies also gave evidence about the face image. She said that Senior Constable Hardiman interviewed her for the purpose using a laptop computer. She had not done it before. He recorded her as giving the following details:
"Male,: late 30s -- early 40s; height 170 -- 175, Aust/Cauc, average build, smaller side of average; darker coloured; hair short back and sides, bit more length on top -- straight with possibly a slight wave -- hair falling to his left, one day's growth -- facial hair; skin a bit weathered, lines on face, fine features not broad features."[1]
It should be noted that the skin was described as weathered and there was a reference to lines on the face and fine features, suggesting that the exercise of creating the face image had caused Ms Goetze-thies to mention features not previously identified. I suggest this is consistent with the obvious proposition that the process of creating a face image may cause a person to retrieve information not previously recorded. The process may also, however, have an impact on the image then in the memory of the witness, that image or recollection being malleable.
[1]Punctuation inserted.
She said that they started with the shape of the face and Hardiman produced a selection of outlines perhaps half a dozen. She thought she described the hair and again was given choices. She said she was not shown blonde hair. Again approximately half a dozen alternatives were shown. A similar process was followed with the brow-eye region, nose, mouth, colouring and texture. She believed that a reasonably good likeness was achieved. She said the process took an hour and agreed that this was a lot more time than the original observation. She said it was done in her home in a relaxed atmosphere and that she became familiar with the picture created.
In re-examination she said her later statement that morning was more detailed. She said that she felt clearer in her mind and less frightened. She said she was more focused and less nervous when doing the face image. She said she had an image in her mind and did her best to convey it.
Evidence as to first photo identification attempt
About one month later, Ms Goetze-thies was contacted by the police about a photo identification. At the time when she was contacted she said she did not know whether someone had been arrested but knew the purpose was to identify a person and she said she thought it likely that such person was a suspect. She said that she was asked to look at the photo board in her home. Soon after the police arrived they turned on the tape recorder. She said that nothing of significance had been stated before that. After a statement from Detective Senior Constable Campbell about the background the following was said:
"I have here a folder which contains photographs of the faces of 12 men. I would like you to look at these photographs and indicate to me if you recognise any of these persons.
GOETZE-THIES.
Do I have to make a definite decision on one?
CAMPBELL.
Well if there's someone there that you can recognise, I'd like you to say that. But if you can't, then we'll come down to any other comments that you might have to make.
GOETZE-THIES.
Possibly 7 or 8
CAMPBELL.
Ok.What do you say about the person and photograph No 7?.
GOETZE-THIES
I think the skin looks familiar. The weathering of the skin. Also number 4 looks familiar too.
CAMPBELL
Take your time and think carefully about what you saw on the 25th of January.
GOETZE-THIES
Am I allowed to look at my photofit too?
CAMPBELL
If you think that will help you to refresh your memory.
GOETZE-THIES
Just looking at that (inaudible) number 4 looks quite familiar. Do you want me to say why it looks familiar or …
CAMPBELL
Yeah, whatever … Whatever you'd like to say about any of them.GOETZE-THIES
Mmm, something about number 4, about the eyebrows and the sort of mid-face region, around the eyes and the nose. Thinking about it a bit more, I don't really think number 8. I can't…CAMPBELL
Take your time, there's no hurry.GOETZE-THIES
Mmm, I don't really know what to add, because I'm not 100% certain, there's certain elements that look familiar.CAMPBELL
In which photographs?GOETZE-THIES
Probably sort of the more I think about it, it's, it's more and more number 4. Yeah, I can't give a definitive answer on that.CAMPBELL
OK. That's alright. Would you turn the tape off.GOETZE-THIES
Yeah."
She said that she was nervous and realised the seriousness of the situation. She said that she was trying her best. Her attempt she said was an honest attempt. She did not know if she concluded that Campbell was suggesting that they had a suspect but thought there was a real possibility that they did have a suspect. She did not know if she drew the conclusion from Campbell's early question about No 7 that he had an interest in No 7 or that his general question after her reference No 4 indicated a lack of interest in No 4. She said that when she asked whether she could look at the face image, she was given the image she had created. She said she was not conscious of any attempt by Campbell to have her focus on a particular photo, for example, after her reference again to No 4 and his response. She said that the police made no comment. She said there was no discussion as to whether she had got it right.
In further cross-examination she said that she had both the face image and the photo board in the morning interview. She said she thought she was assisted by the face image more than her recollection but denied that she was more familiar with the face image. She said that she looked to see if the photos matched the face image and looked backwards and forwards between them.
Second photo identification attempt
Later that afternoon, Campbell contacted her again. She did not ask why. On this occasion there was no tape recorder. She said that they were there some 15 minutes. They used the same photo board and the same format. She said that Campbell asked her to make another try. She said it was clear to her that the police had a suspect's photo there. Asked if their return had indicated that her reference to No 4 was wrong, she said that that was not so. She said she had not in fact identified anyone and she believed that they wanted a definitive answer to one of them. Her position then, as at the committal and now, is and was, that she was fairly confident about No 7. It was a preference but she was not suggesting a positive identification. She said she could not remember the details but they did discuss the process again. She said she did have a concern that if she did identify a person, it would not be difficult for that person to establish where she lived. She said she did discuss her nervousness with the police on this occasion. She said she was given no new information but was more familiar with the process and felt more comfortable with it, being less nervous about the process. She said that she looked at the photo board for 5 to 10 minutes and could not remember what was said. She said that the face image may have been present. She believed that nothing was changed on the photo board. Asked if there was any reason to change from 4 to 7, she said she became more confident about 7. At the end of the examination of the photo board she indicated her preference for No 7. She said she thought they did comment on her choice after she chose No 7. She could not recall if it was before she signed her statement. She did not recall if she thought she had picked the right one but she felt confident .
She said she was nervous when interviewed on 25 February 2002. She was conscious of the serious responsibility of the task and did not want to make a rash decision. In addition she said that she feared that the person identified would know where she lived. She said that these things were weighing on her mind in the morning and affected her thinking. She said that she was less nervous in the afternoon. She said she had more time to think about her response and her duty and not to be concerned about whether she might be found. She said she was also more familiar with the process. She said she was not conscious of any influence as to her choice in the morning or in the afternoon that day.
In further cross-examination she said that she may have had the face image with her in the afternoon but could not recall precisely. She agreed that she had had a good look at it during the morning interview. She agreed that in the afternoon session she had picked out a picture that looked most like the face image but denied that she had picked out No 7 because it was most like the face image. She conceded however that she could not rule that out. In response to further questioning from the Crown she said that there was a difference between a photo and a photo fit in that capturing someone's face is quite different. She said photo No 7 captured the image of the person. She said it was the image in her mind which she said was still quite fresh.
To complete the accounts of Ms Goetze-thies of the events of 25 February 2002, I should refer also to her statement which was in evidence before me. After referring to previous statements to the police including the one made that morning, she said in response to questions from Detective Campbell:
"After looking at the photographs I said that there were three photos that looked familiar or similar to the man I saw unmasked, being photos No 7, 8 and 4. This afternoon Detective Campbell and Detective Gleeson came back to speak to me. We discussed if there may have been anything on my mind that influenced my viewing of the photos this morning. I would say that sub consciously I was concerned that the offender may have learned my address through the processes. When I first looked at the folder of photographs I was immediately drawn to photograph Nos 7 and 8, but more so No 7. I have looked at the face image I compiled of the man I saw that afternoon again. I am happy that it is a good likeness of the person. The most significant features of the man's face was the weathered appearance of his skin and the defined cheek bones. I have looked again at the folder of photographs and I feel fairly confident in saying that the man in photograph No 7 is the man I saw outside my house on 25th of January 2002."
Deferral of ruling on admissibility of first photo identification attempt.
The positions of the accused and the Crown on the admissibility of the evidence relating to the first photo identification attempt depends upon the outcome of the objection of Coates to the admission of the evidence of the face image and the evidence of the second attempt at photo identification. In this ruling, therefore, while the evidence of the first photo identification attempt is relevant, I will not rule on its admissibility but only rule on the admissibility of the other evidence.
Admissibility of Face image
Counsel for Coates submitted that there had been no identification as such by the face image. At the most there had been a description which could form part of a circumstantial case.[2] Counsel submitted that the evidence should be excluded in the exercise of the discretion to exclude evidence where the probative value of the evidence is outweighed by its prejudicial effect and by the general discretion to exclude evidence where its admission would result in an unfair trial.
[2]R V. Hentschel [1988] V. R 362; R V. Pitkin (1995} 80 A Crim R 302
In assessing the probative value of the evidence, counsel submitted that it was relevant to consider the initial observation because there were aspects of the circumstances of the observation which adversely affected the initial perception of the face. Counsel referred to the brief period of observation, the fact that the man was moving, the absence of a full frontal observation, although that was what was produced in the image, the man was not known to her, she was “peeping” through the side window into a shady area , she did not have him in view for more than 10 seconds, they were fleeing fugitives and she was frightened. It was also put that the exercise was an investigating one designed to assist the police and the witness. Counsel submitted that the image was a patched together likeness and was rated by her as no better than "good" in the scale used by Hardiman of "poor, average, good, very good, excellent". He submitted that the probative value was adversely affected by the fact that the witness had not been shown a full range of possibilities by Hardiman. Counsel submitted that on the evidence of Hardiman, it was only the eyebrows that had been customised.
The argument of counsel for Coates involves an assessment of the reliability of the evidence. I note that there appears to be some uncertainty as to whether and to what extent it is relevant for a trial judge in exercising the discretions to form his or her own view as to the reliability of the evidence in question.[3] I will proceed on the basis that in this instance it is relevant for me to assess the reliability of the evidence.
[3]Rozenes v. Beljajev [1995] 1 VR 599; Hoch v. The Queen (1988) 165 CLR 292, R. v. Vonarx [1999] 3 VR 618, 622 -- 3.
Counsel submitted that in all the circumstances, the probative value of the evidence was very little. By contrast, counsel submitted that the prejudice of admitting the evidence was more complex and was incurable. Specifically, it was put that prejudice flowed from the fact that the accused was not present and could not comment on what occurred. Further, it was put that at the trial the jury would ask itself whether the image looked like Michael Coates and ask what were the odds that it was. Counsel submitted that there was a danger of the jury wrongly treating the evidence as identification evidence and no warning was adequate to address its problems. He submitted that any warning that needed to be given would be highly technical and have the opposite effect. Counsel did not elaborate. Counsel submitted that the Crown should be confined to the oral description and an argument that it was consistent with Coates. Counsel submitted that the image was powerful and potentially very misleading.
In weighing up the issues, counsel submitted that the evidence had to be considered in context. In particular putting the Crown case at its highest, he submitted that the evidence linking Coates to the armed robbery itself was as follows.
• Evidence that Coates knew Gardner
•Evidence of the neighbour Miles that a person resembling Gardner attended at Coates home with possible gun cases shortly prior to the incident, but there was no evidence that Coates was present or knew about the guns. To this the Crown responded that there was evidence that Coates was the tenant and that there was evidence that the day after the shooting, Gardner was at Loch Street bleeding and receiving help from Coates. Here the Crown emphasises that the link is established by DNA evidence relating to blood found on the premises.
•Cupboards from Loch Street were found in the red utility used as a getaway car. The Crown went further to argue that furniture and rope identified as coming from Loch Street were found in both getaway vehicles and tyre impressions consistent with both cars were found at 5 Loch Street.
Counsel for Coates submitted that none of the above matters put Coates in the armed robbery. To link Coates to the armed robbery it is put that the Crown must rely upon the description of Goetze-thies, her attempted identifications and the DNA on a green cap found in the laneway used by the accused to escape. The Crown's position is that the DNA of two people was found and that the experts could not exclude Coates as possible sources. The Crown also stated that it relies upon a mark found on the arm of Coates which the examining Doctor said was consistent with either an abrasion or a burn and evidence of witnesses who saw the robbers set fire to the red utility and the sleeve of one of them catch fire.
Plainly the evidence of Goetze-thies tending to identify Coates is important and therefore from the Crown's point of view, and the accused, of significant probative value in that sense. As to the face image, it is important in that sense because it shows a resemblance between Coates and her then, contemporaneous, recollected image of the bare-headed person.
As to the reliability of the face image evidence, I am satisfied that Goetze-thies approached her task cautiously and with care . Her description of the likeness as "good" was a reflection of her caution and appreciation of the need for care. I am also satisfied that Hardiman approached the task in an objective and professional manner. The probative value of the evidence may well be enhanced by the training and background of Goetze-thies in graphics and working with images, but I do not rely upon that because the issue was not explored in evidence with her.
As to the reliability of the original observations, I am satisfied that notwithstanding the brevity of the observation, she had a clear sighting of the person not wearing a balaclava, it was close to full frontal and in close proximity to her. There were aspects which detract from the quality of the initial observation to which counsel referred but I do not regard them as so reducing the probative value of the evidence that it has no probative value. They can be adequately addressed by suitable directions to the jury.
As to her credibility as a witness, I was impressed with her care, general demeanour and apparent frankness. The Crown described her as a considered witness. I think that is a good description. It is true that she now says that she was not frank with the police during the first photo identification attempt in that she says that her fear of being identified to the suspect, and her anxiety about the responsibility of identifying the person, caused her not to tell the police that her initial reaction was that she was drawn more to No 7 than No 8. While this raises an issue about her honesty as a witness, she dealt with the issue frankly when giving evidence and it does not detract from the generally favourable impression I received of her as a witness.
I do not see the failure to show the full range of possibilities to Ms Goetze-thies as something detracting from the reliability of the evidence. Rather, it was less likely to adversely affect its reliability than the alternative suggested by counsel. The alternative would involve placing information before the witness inconsistent with her original description and thus in fact be likely to corrupt her original recollection. I am satisfied that the approach taken by Hardiman was structured in such a way as to leave the initiative with the witness and to minimise the risk of post event information affecting the reliability of the image recorded.
The main concern is, I suggest, the potential for a jury to give more weight to the face image than is warranted. But this is an issue that will be addressed by counsel and also will be addressed in the judge's charge where appropriate warnings and directions can be given.
Bearing the above in mind, I have come to the conclusion that the probative value of the evidence is not outweighed by any prejudicial effect and the admission of the evidence should not give rise to any unfairness in the trial.
The second photo identification attempt on 25 February 2002.
Counsel for the Crown submitted that there was a true identification made by Ms Goetze-thies on her second attempt. Alternatively, the Crown submits that the evidence is admissible to prove a likeness between the person seen by the witness and the accused Coates and can be used along with other circumstantial evidence to prove his involvement in the armed robbery.
I accept the submission of counsel for the accused Coates that her evidence, was in the end, that she had not made an identification. In cross-examination she said that during the second attempt she came to a preference for photo No 7 but that she was not suggesting that that amounted to a "positive identification of that man". It is necessary to consider the other basis upon which the evidence was tendered.
Counsel for the accused Coates, conceded that there could be no challenge to the propriety of using photo identification, Coates having declined to participate in an identification parade. He submitted, however, that the process followed was fundamentally flawed starting with the first photo identification attempt and flowing through to, and including flaws in, the second attempt. Counsel submitted that this resulted in the evidence of each being unreliable but the second attempt doubly so while creating serious forensic disadvantages for Coates.
Counsel submitted that Ms Goetze-thies acknowledged that by the time of the second attempt, she believed that a photo of the police suspect was included in the photo board. Counsel also submitted that during the first interview the statements of the police and the verbal reactions to her statements would have left her with a clear impression that the police were hoping that she would identify No 7. Counsel submitted that this impression would have been reinforced by the fact that, the first interview having been abruptly finished when she indicated a preference for No 4, the police asked her to try again, but not for No 4 but the other one she had nominated, No 7. A further problem, it was put, was that in the morning interview she had been provided with the face image and she had used it extensively while examining the photos looking from one to the other. It was put that plainly during the process she was looking for correspondence between the face image and the photos. In her evidence she said she was comparing the photos with her original recollection but counsel for Coates submitted that the use of the face image must have coloured her memory and compromised that process and the process followed in the afternoon. Counsel also submitted that the fact that she was not aware of the corrupting effect of the use of the face image introduced further danger in to her purported selection of photo No 7 as the photo likeness she preferred.
Counsel also submitted that the accused Coates was placed at a forensic disadvantage because there was no tape recording of the interview and no contemporaneous record of the interview which would enable an examination and testing of what occurred. There is a statement but it is inaccurate at least to the extent that, in referring to the earlier interview, it does not state that she had expressed a preference for photo No. 4 and is itself couched in terms of an identification of which she was "fairly confident". It was put that the explanation for the lack of a tape recording was evasive and that its absence supports the conclusion that Detective Campbell did not want a recording of the second interview. Counsel submitted that the reason was that he was intending if necessary, to lead the witness to the conclusion that she identified the suspect in photo No 7.
The police are to be commended for using a tape recorder in the morning interview. Their earlier actions make it all the more difficult to understand why, subsequently a tape recorder was not obtained by the same officers before returning to speak to the witness, but it is unnecessary and therefore undesirable to express any conclusion, particularly without further investigation and evidence about his movements and the movement of the tape recorder used in the morning.
I should indicate, however, that I do not accept the evidence of Detective Campbell that Ms Goetze-thies' behaviour during the first attempt indicated instant recognition. This was not the evidence of Ms Goetze-thies and was not the evidence of Detective Gleeson.
Counsel for the Crown disputed the alleged weaknesses of the evidence but also submitted that even if those weaknesses were accepted, they could be amply addressed by appropriate directions and warnings to the jury.
In my view, the use of the face image in the course of the first photo identification attempt fundamentally flawed that attempt and the one later that afternoon. In doing so, the problem of displacement effect was introduced . In this instance, its effect was made worse by the fact that her evidence reveals that she was not aware of the possibility of that effect and maintained the position that her original mental image of the man remained intact and independent of and different from the face image. As a result, in expressing any opinion as to preferred photos, she had not taken into account the possibility that she might be simply comparing the face image with photos. I suggest that the significant reality of this problem is borne out by the fact that in her last interview she is recorded as saying the following:
"the most significant features of the man's face was the weathered appearance of his skin and the defined cheek bones ".
In her first description she said she did not see any distinguishing features. In no previous description had she identified any significant features. Further, she referred in her last statement for the first time to defined cheek bones and referred to them as significant features.
Not only does the use of the face image effectively deprive her choice of photo No 7 as a preferred photo of probative value, it also unfairly prejudices the accused Coates because it creates a grave risk of misestimation of any probative value. To be able to assess the probative value, it would be necessary, for example, to form a judgment about how much of the original memory was intact and how much comparison made by the witness involved use of any original memory or use of the face image. This is a virtually impossible task. Further, as she is unaware of the problem, it will be difficult, if not impossible, to test her evidence.
Her view of the operation of perception and memory of faces is shared by Detective Campbell. It is a not uncommon view and is likely to be shared by members of the jury. This raises further concerns of a real risk of misestimation of probative value if the evidence is admitted.
Finally, I am satisfied that, despite their efforts not to do so, the actions of the police, including the statements they had made during the first interview, gave the witness the impression that she could have more confidence in photo No 7. They had shown direct interest in No 7 but not No 8. When she twice expressed interest in No 4 she was asked to take her time and think carefully. When she offered to say why No 4 looked familiar she did not receive encouragement and was invited to talk about any of the photos. When she made it clear she was preferring No 4 the interview was terminated quickly. It is true that she has said that there was no influence exerted by the police on either occasion as to her choice but the effect of what they said was subtle and I think it likely that by the second interview the above would have subtly affected her confidence in favour of No 7. This further weakens any probative value of the evidence.
There are points about the photoboard that are troublesome. It is no doubt very difficult to assemble a suitable collection of photos. In this instance, however, it may be said that photo No 7 has features in combination not found in any other; clarity, size, white background, prominent facial lines. It is also located close to the centre of the board. These issues were not argued and I have not taken them into account in my decision.
For the foregoing reasons I am satisfied that evidence of the second attempt at photo identification should be excluded on the ground that it has little or no probative value and that such as it has is outweighed by its prejudicial effect.
The Crown does not seek to have the evidence tendered as evidence proving that the witness chose photo 7, the photo most similar to the face image. Plainly such evidence would not advance the matter of identification for the Crown
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