R v Gautam and Singh
[2018] SADC 86
•16 August 2018
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GAUTAM AND SINGH
[2018] SADC 86
Reasons for Ruling of His Honour Judge Barrett
16 August 2018
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - NATURE OF DISCRETION - GENERALLY
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - PHOTOGRAPHS - GENERALLY
Both accused are charged with Aggravated Causing Harm with Intent to Cause Harm of one man and Aggravated Assault on a second man. Victims identified the accused after being told that the accused were their assailants. Later they identified the accused in photoboard processes. The accused seek the exclusion of the identification evidence on both Facebook and the photoboards.
Held: The Facebook and photoboard identifications are admitted into evidence.
R v Lobban (2000) 77 SASR 24; Police v Hall (2006) 95 SASR 482; R v Crawford [2015] SASCFC 112; R v Christie [1914] AC 545; Festa v the Queen (2001) 208 CLR 593; Bunning v Cross (1978) 141 CLR 54; Strauss v Police (2013) 115 SASR 90, [2013] SASC 3; R v Benfield [2015] SADC 150, considered.
R v GAUTAM AND SINGH
[2018] SADC 86
Application is made by both accused to have excluded at their joint trial evidence identifying them as the perpetrators of violence against two men. Both accused are charged with Aggravated Causing Harm with Intent to Cause Harm to the first man and with Aggravated Assault on the second man. A voir dire was conducted on the papers on the 5th of July 2018. I reserved my decision.
Issue
There is no dispute that the two victims were attacked in the way that they say they were. The only issue in the trial is whether the prosecution can establish that the accused were the perpetrators. The issue in the proposed trial and the issue on the voir dire is identity.
Background
The assaults occurred at about 10.45pm outside a restaurant in Walkerville on the 23rd of June 2016. There is no dispute that both accused and both victims were guests at the birthday party of a two year old child of the host couple. All attendees at the party were of Indian descent, most, if not all, coming from the Punjab region of India. The hosts, both accused and both victims were from the Punjab region and five of the six are of the Sikh religion. The first accused Anurag Gautam is not a Sikh. With no disrespect to anyone involved and without prejudging the outcome of the trial, but for convenience, I am going to identify the central individuals in this case as follows:-
·Anurag Gautam, the first accused on the Information, D1;
·Prabhjot Singh, the second accused on the Information, D2;
·Pardeep Singh, the victim of count 1, V1;
·Harsimranjit Singh, the victim of count 2, V2;
·Jaspreet Singh, the male host, MH
·Mandeep Kaur, the female host, FH.
The guests arrived at the restaurant about 8pm. The assaults took place just outside the restaurant around 10.45pm. The guests were seated at a number of round tables in the restaurant. It is not disputed that both accused and both victims were seated at the same table although from time to time individuals moved about the restaurant. Both accused and both victims were aged in their late 20s.
It is the prosecution case that both accused were friends of MH and were invited to the party by him. Ms Stanley for D1 said that it is not agreed by her client that he knew the hosts or was invited by them. Instead he came with another invited guest. Ms Stanley did not identify the other invited guest. In his witness statement MH says that both accused were friends of his on Facebook.
The prosecution case is that early in the evening there developed a disagreement between V1 and D2 about a third person, Mandeep Singh, a man who had apparently shared a house with V1 and V2 for a while. Mandeep Singh had been deported back to India some time earlier. V1 was being critical of Mandeep Singh. D2 was defending him.
V2 says that he told V1 and D2 not to worry about the matter. V2 says that later in the evening he noticed V1 and D2 were again talking to each other and he became worried that they might have resumed their argument. He approached them. D2 asked them to come outside to talk. As the three of them were making their way towards the door V2 saw D2 pick up a beer bottle. All four men, that is both accused and both victims went outside. Almost immediately D2 hit V1 over the head with the beer bottle which smashed. D2 then cut V1’s face with the broken bottle. V1 ran away. He was extensively injured. Count 1, the charge of Aggravated Causing harm with intent relates to that attack. Both accused are charged with that offence, and also count 2.
V2 says that D1 was standing close by holding another beer bottle which he then threw to the ground causing it to smash. D1 and D2 then began punching V2 to the head. They also kicked him. V2 thinks that he passed out for a while. The attack on him is the subject of count 2, the charge of Aggravated Assault.
That is the Crown case.
The Identification Evidence
I will attempt to set out chronologically the evidence which bears on identification. The chronology is prepared entirely from the witness statements and the exhibits tendered on the voir dire. There are four statements from V1 as follows: -
·30th of June 2016
·17th of September 2017
·28th of June 2018
·3rd of July 2018
There are five statements from V2:
·30th of June 2016
·1st of March 2017
·2nd of June 2017
·28th of June 2018
·3rd of July 2018
I will refer to the exhibits as they become relevant.
There is some uncertainty about what, if any, contact there had been between the accused and the victims before the incident.
V1 says in his statement of the 30th of June 2016 that he had seen both males before. ‘I have known of them as I had seen them around, but I did not know them by name at the time of the fight. I would be able to recognise them again.’ V1 qualified that statement in his statement of the 3rd of July 2018. He said he had not seen D2 before the party but had seen D1 once or twice before the party. He said he was a taxi driver. He said ‘I had seen him around. I had not spoken to him before though, and I didn’t know his name then.’
V2 made no mention of ever seeing either of the accused before. He said in his first statement, also dated the 30th of June 2016, that he and V1 were sitting at a table of about 10 people. He referred to D2 by name as being at the same table and he referred to the other man who attacked him as Varun Gautam not Anurag Gautam.
I will explain how each victim comes to refer to both accused by name in their first statement on the 30th of June 2016, seven days after the incident. I have referred to their first statements (and in the case of V1 his fourth statement) out of chronological order simply to note what each said, or did not say, about knowing anything of the accused before the night.
Before moving to the identification evidence I pause to note the opportunity that the victims had to observe the accused during the evening. It is appropriate to speak of both the victims and the accused collectively.
1The four men were at the same function for two-and-three-quarter hours.
2The four men were seated at the same table but moved about from time to time.
3There was conversation or argument at the table between V1 and D2 into which V2 intervened at one stage. The conversation was about a third party all four apparently knew. There is no evidence that either accused knew the third party apart from what both victims assert.
4Both victims drank alcohol during the evening. V1 said nothing about the consumption of alcohol by himself or V2. V2 said that he had had three or four glasses of whisky and was mildly affected by alcohol. He said that V1 was not a big drinker, had drunk beer and he thought V1 was mildly affected but not drunk. It would appear that V1 had blood taken from him at the hospital at 11.55pm and the blood alcohol content was .092%.
·All four men were of the same age and ethnic background.
·Most if not all males at the party are likely to have been of the same or similar ethnic background.
I turn to the first steps in the identification process.
Facebook and related conversations
There is evidence that there was some conversation between both the victims and MH about the identity of the assailants while the victims were still outside the restaurant waiting for the ambulance. That is, there were conversations on the night of the incident. MH says in his declaration of the 3rd of July 2018 that he spoke to the victims as he and his wife were leaving the restaurant. He said that V1 described the two assailants in these terms – ‘1 was healthy with a beard and long face. The other was thinner, not healthy looking.’ MH said “they” told him that the two men had been at their table.
V1 makes no reference in any of his statements to speaking to MH on the night. In his first statement on the 30th of June 2016 V1 gives a more detailed description of the assailants but I bear in mind that by then he had seen photos of both accused.
V2 in his statement of the 3rd of July 2018, but not earlier, says he spoke to MH outside the restaurant. He said he told MH that one of the assailants had a big beard and the other a smaller beard and he thought they were wearing jackets. He too said the assailants had been sitting at their table.
In his first statement to the police on the 30th of June 2016 V2 gave a more detailed description of the assailants.
In his statement of the 3rd of July 2018 MH says that he concluded on the night of the incident that the two accused were the assailants. He said he did so on the basis of the descriptions both victims had given him and the fact that the two assailants were said to have been at the same table as the victims. MH said that both accused were friends of his on Facebook.
MH said that the next day he looked through his friends on Facebook and he showed V1 the photographs of both accused. V1 recognised them both. V1’s account of the identification the day after the incident appears for the first time in his fourth statement, the one dated the 3rd of July 2018. He says that the following day MH visited him at his house. MH told V1 the names of the assailants. V1 said that after MH left his house he searched Facebook for the two names. He found the accused and looked at four or five photographs of each of them on their Facebook entries. He said he immediately recognised the accused as his assailants.
In that same statement, and for the first time, V1 said that he had received phone calls from people telling him who his assailants were. I reproduce what he said on that topic at paragraph 12 of his statement:
I also received phone calls from people telling me who assaulted me, and I thought it was important to have the names of the men whom (sic) assaulted me and Harsim (V2) to take to the police. I then gave my statement to police at the Holden Hill Police Station on Thursday 30th June 2016.
V1 said that having located the Facebook pictures of the accused he sent screenshots of them to V2. He did that before he and V2 gave their statements to police on the 30th of June 2016.
In his statement of the 3rd of June 2018 V2 confirms that V1 sent him the screenshots of both accused before they gave their statements to the police. He says that the day after the incident he spoke on the phone to both MH and his wife FH. They spoke on the speaker so that all three could hear each other. V2 says that he asked the hosts if they could help identify the assailants. MH told V2 the names of the accused.
I summarise the steps taken towards identification of the accused before the victims gave their first statements to the police on the 30th of June 2016, a week after the incident.
·On the night of the incident MH concluded that the two accused were the assailants. He did so on the basis of brief descriptions of the assailants given to him by one or possibly both victims. In addition MH had seen both accused, whom he knew, at the same table as the victims.
·The day after the incident MH told V1 that the two accused were the assailants.
·As a result of what MH told him, V1 looked at the Facebook entries of both accused and recognised them. It is unclear whether he was shown the Facebook entries by MH or whether he looked at them himself after MH left his house.
·At some stage before the victims gave their first statements to the police V1 sent screenshots of the Facebook pictures of the accused to V2 telling him their names and that they were the assailants.
I pause to say that it is quite understandable that people who had been attacked in the way both victims had been would seek to identify their attackers. It is understandable that they would take the steps that they and their friends took to identify them. The question for me is not the reasonableness of what they did but the reliability and appropriate weight of the identifications they made and consequently the admissibility of the evidence of identification.
I add that it is regrettable that the police officers who took the first statements of the victims did not explore the steps that each had taken to identify their assailants. Both victims purported to name their assailants but neither appears to have been asked how they came to know their names. It is surprising that there was no follow up enquiry about the inconsistency between the given names attributed to D1 – V1 gave his name as Anurag Gautam whereas V2 gave his name as Varun Gautam.
First Witness Statements on the 30th of June 2016
Both victims gave statements to different police officers at the Holden Hill Police Station a little after 3pm on the 30th of June 2016. V1 gave his statement to Constable Morgan. V2 gave his statement to Senior Constable Shah (Senior Constable Shah had attended the scene of the crime and had taken photographs of V1). Both victims gave descriptions of the assailants. Both named them as I have already indicated.
It is not clear what, if any, components of the descriptions of each were depicted in the Facebook photographs they had seen. The descriptions included age, height, weight, hair colour and style and the clothing each was wearing. In all likelihood some of those topics would not have been discernible on the Facebook photographs.
Photoboard identifications
Harsimranjit Singh (V2) – 1st of March 2017 at Port Adelaide Police Station
V2 was the first to take part in a photoboard identification process. He did so at the Port Adelaide Police Station on the 1st of March 2017 in the presence of Senior Constable Clare Walker. The process was recorded on audio/visual disc tendered as VDP6. V2 was shown two folders of photographs – one marked HS1 and tendered as VDP1 with a photograph of D2 in position six. The other was marked HS2 tendered as VDP2 with a photograph of D1 at position four (I note that in his declaration dated the 1st of March 2017 V2 refers only to viewing the folder HS1/P1 but the video makes it clear he also saw HS2/P2).
With regard to the first folder, the one containing the picture of D2 at position six, V2 initially said there was nobody whose photograph he recognised and he was not going to be able to make a selection. However shortly before the procedure ended he said ‘maybe six’ and he selected that photo.
With regard to the second folder V2 almost immediately selected the photo of D1.
V2 was not asked what role he said each of the accused played in the incident. Both defence counsel criticised the photoboard folders on the ground that there are few if any other photos of men who appear to be of Indian descent. I do not necessarily agree with that observation although I agree that some of the photos appear fairly clearly to be of Aboriginal men. I will refer shortly to an observation made by V1 about one of the folders he looked at.
Pardeep Singh (V1) - 31st of August 2017 at Petrie Queensland
V1 did not take part in a photoboard process until the 31st of August 2017. He did so at the Police Station in Petrie Queensland in the presence of Detective Sergeant Karl Innes. The process was recorded on audio/visual disc tendered as VDP5. V1 was shown two folders of photos which were different from those shown to V2 the preceding March, although there do appear to be some photos which are common, apart, that is, from the accused. The folders shown to V1 are marked PS1 tendered as VDP3 and PS2 tendered as VDP4.
The folder PS1 had a photo of D2 in position two and PS2 had a photo of D1 in position one.
In the first folder V1 selected the photo of D2 and said that D2 was the man who hit him on the head with the bottle. After making this selection V1 said that the other people depicted in that folder ‘do not look like Indian’. I do not necessarily agree with that observation but I accept that it is of some significance that V1 made the observation.
V1 selected the photograph of D1 in the second folder and said that he was the man who punched V2. D1 refers to his photoboard identification in his declaration of the 17th of September 2017.
Video of Party
The hosts of the party had hired a photographer to take a video of the function. In her statement of the 7th of May 2017, FH said that on the 21st of July 2016, only a month after the party, she gave the police a disc containing footage of the function. In her later statement of the 3rd of July 2018, FH said:
I got the video from the photographer, and images from the video myself of the persons involved in the fight. I compiled photos which had (V2) and (V1) in them. At this time I did not know what (sic) the 2 males who assaulted (V2) and (V1) were.
While it is not clear from that statement that the disc FH gave the police contained images of the accused I infer that the photos annexed to the statement of Detective Brevet Sergeant Gavin Baldan dated the 4th of November 2017 and marked GS1 and GS2 are photos taken from that disc. Baldan identifies D1 in the first photograph GS with a blue arrow and D2 with a yellow arrow. The two accused are among a group of about 12 men whom I would describe as appearing of Indian descent. There is a separate photo showing the two accused standing together on their own. In the group photo the two accused are wearing jackets, D2 a light blue jacket and D1 a darker jacket which is shown indistinctly but may be black. In the single photo they are just wearing shirts on the top. D1 is wearing a dark blue shirt with white dots and D2 is wearing a black plain shirt.
While the two photographs annexed to Detective Baldan’s statement do not make obvious many similarities or dissimilarities between the accused I would make these observations about the two of them:
·Both men have beards;
·I would describe the beard of D1 as fuller than that of D2;
·I would say that the face of D1 appears longer and narrower than that of D2;
·D2 appears to have an earring or stud in his left ear;
·The left ear of D1 is not shown in either photo.
(The arrest photos of both accused were not taken until the 9th of January 2017. They are annexed to the declaration of Senior Constable David Ford dated the 1st of September 2017).
It appears that the photos taken from the disc were shown to each of the victims just before the voir dire. Understandably the prosecution does not propose leading evidence of what I assume is identification by each of the victims of the accused in those photos (if there was an absence of identification I would expect that evidence to be led). The prosecution does however propose leading the evidence of the party photos to establish that both accused were at the party and to demonstrate their appearance at the time.
Discussion
Objection is taken by both accused to the admissibility of the Facebook identification and the photoboard identification. I will deal with the identification by each victim separately shortly but I make some general observations about the identification evidence in this case.
The opportunity for each victim to see each accused at the party was more than fleeting. They had been at the same table for about two-and-three-quarter hours albeit that various of the attendees moved around during the evening. There had been some conversation and some disagreement between them at the table.
V2 had never seen either accused before the night of the party.
The situation was slightly different with V1. V1 had not seen D2 before the party but had seen D1 before, albeit that he had only seen him two or three times, had not spoken to him and did not know his name.
V1’s Facebook identification of both accused the day after the incident is preceded by at least one and possibly three significant events which may have influenced his identification. They are as follows:-
1MH tells V1 the names of the accused and says that he believes they are the assailants.
2MH may have actually shown V1 the Facebook photos of both accused the day after the incident. MH says he did that. V1 makes no mention of MH doing so. V1 says that after MH left his house he himself looked at the Facebook photos and identified both accused.
3It is unclear whether the ‘other people’ who rang V1 and told him the accused were his assailants did so before or after V1 looked at the Facebook photos. The inference I tentatively draw from the terms of V1’s statement of the 3rd of July 2018 is that those calls were made after he looked at the Facebook photos but before he gave his first statement to the police on the 30th of June. It is unclear whether he received those calls before he contacted V2 and showed him the Facebook photos. Again I tentatively infer he contacted V2 as soon as he made the Facebook identifications.
V2’s Facebook identification is potentially influenced by whatever influences were operating on V1 plus V1’s own communication with him. V2 says V1 sent him the Facebook photos of the accused saying they were the assailants.
V1’s photoboard identification in Queensland was on 31st of August 2017, some 14 months after the event. There are criticisms of the photo array. V1 said after selecting the photo of D2 that the others in the array ‘did not look like Indian’.
V2’s photoboard identification in Port Adelaide was made on the 1st of March 2017, some eight months after the event. There are criticisms of the array presented to him. V2’s identification of D2 was hesitant. He did not at first make a selection but towards the end of the process did so.
There was no evidence of contamination affecting either victim between the initial statement of each given to the police on the 30th of June 2016 and the photoboard identifications.
Exclusory discretions
Each accused applies to have the Facebook and the photoboard identifications excluded in the exercise of what is essentially the unfairness discretion (see R v Lobban (2000) 77 SASR 24; Police v Hall (2006) 95 SASR 482; R v Crawford [2015] SASCFC 112).
The discretion to exclude the identification evidence, whether it be Facebook or photoboard, is enlivened if its reception would render the trial unfair to the accused. Although both accused rely on the Christie[1] discretion to exclude the evidence where the probative weight of the evidence is outweighed by its prejudicial effect, I think it is now accepted that that discretion is regarded as an aspect of the unfairness discretion (see R v Crawford [2015] SASCFC 112 at [25]).
[1] R v Christie [1914] AC 545.
Generally it is not the function of a Judge to exclude identification evidence by reason of the frailties of the evidence. The weight of the evidence is for the jury. The question on a voir dire is whether the frailties of the identification evidence can be explained satisfactorily to the jury (see Festa v the Queen (2001) 208 CLR 593 per Gleeson CJ at [21] and McHugh J at [65]). If there is a risk that directions will not be sufficient to bring home to the jury the frailties of the evidence then the discretion to exclude should be exercised. If the prejudicial effect of the evidence outweighs its probative weight then the evidence should be excluded.
There is also a discretion to exclude evidence where there has been police impropriety in the investigation in the matter. Public policy considerations require the exclusion of the evidence in those circumstances (see Bunning v Cross (1978) 141 CLR 54). There are several failures to properly investigate the identification evidence in this matter. The officers taking the first witness statement should have elicited from the victims how they came to identify the offenders by name. Had that enquiry been made the Facebook identifications would have come to light at an earlier stage. The identity of the potential witnesses who told V1 that the accused were the assailants might have been known and statements taken from them. The victims would have been warned not to look at any further Facebook photos (there is no evidence that they did look at later Facebook photos but a warning should have been given). The importance of timely photoboard or line-up identifications would have been heightened. Further, more attention might have been given to the composition of the photoboard arrays which were shown to the victims.
Despite these criticisms there is in my view no ground for thinking that there was any impropriety in the investigation. The Bunning v Cross discretion does not arise in this case.
I turn first to the Facebook identification by V1 of both the accused. Given the ubiquity of Facebook it is not surprising that courts have had occasion to consider the ways in which witnesses resort to Facebook bears on identification evidence.
In Strauss v Police (2013) 115 SASR 90, [2013] SASC 3, Peek J conducted a detailed analysis of the question ([12]-[37]). In that case the victim of an assault was told by a witness that she had located on Facebook a photograph of his assailant. The day after the assault, armed with the name of the accused, the victim searched Facebook himself and located the identity of the appellant as his assailant. Subsequent to that Facebook identification there were a number of failures in the police investigation which bore on the question of identity.
Peek J was hearing an appeal from a Magistrate who convicted the accused on the basis of the identification evidence. His Honour allowed the appeal and quashed the conviction. His Honour did not do so on the basis that Facebook identification per se was unreliable. The basis for his Honour’s finding was that the cumulative effect of the frailties of the Facebook identification and the other deficiencies in the investigation of identification were such that there was ‘a very substantial possibility of incorrect identification.’ His Honour found that the learned Special Magistrate had not sufficiently warned herself of the failures of identification evidence, in particular the Facebook identification. That finding standing alone would only have led his Honour to remit the matter for rehearing. However his Honour concluded there were sufficient deficiencies in the whole of the identification evidence that the conviction could not stand. He quashed the conviction and dismissed the complaint.
In R v Crawford [2015] SASCFC 112 the Court of Criminal Appeal considered an appeal from a conviction where a Facebook identification was made. In that case the victim of, inter alia, an assault was told by police that the appellant’s palm print had been located at his home. That is, the police told the victim the name of the person whose palm print had been found. Before the victim underwent a photo identification process he accessed the appellant’s Facebook page. At the photo identification stage the victim selected a photograph of the appellant but was somewhat diffident in his selection. He said this:
I’m thinking number 10… but I’m not 100% sure… I am going to say number 10… I am thinking I am going to say 10, but I don’t want to get anyone into trouble if it’s not.
By a majority the CCA upheld the Judge’s decision to admit the Facebook and photoboard identifications.
In dissent Peek J held that a combination of the police impropriety in telling the victim the appellant’s name, the weakness of the photo ID and the tainting of the photo identification by the prior Facebook identification called for the exclusion of both forms of identification under the Unfairness, Christie and Public Policy discretions.
In R v Benfield [2015] SADC 150, I excluded Facebook and photoboard identification by the victim of an assault. In that case the victim made a somewhat tentative identification of the accused in a photoboard process. She did so after the following events had occurred: -
1A day or so after the assault the victim’s sister told her she thought the accused was the assailant. At the time the sister said that there was being discussed a photo of the accused on Facebook with his arm around a man whom the victim positively knew was the man who had started the incident which led to the assault.
2Despite being warned by the police not to do so, the victim looked at the Facebook photograph of the accused a week before the photoboard process. She did so for the express purpose of focussing her attention for the forthcoming photoboard process.
In that case the victim had only a fleeting opportunity to observe the assailant on the night. The identification evidence was the only evidence in the trial implicating the accused.
The prosecution was not going to be able to call the sister to give evidence.
One reason for my excluding the identification evidence was that I could not envisage a direction to the jury which would bring home to it the need to exclude from their minds the identification of the accused by the victim’s sister. That is, the jury should exclude the sister’s identification as evidence of identification of the accused. The jury could of course consider the sister’s conversation as part of any challenge by the accused to the identification, but if the defence chose to elicit that evidence before the jury it would do so at what I described in my reasons as a considerable forensic cost.
The forensic cost in that case has its parallel in this case. The prosecution will not of course lead the evidence that other unidentified people rang V1 the day after the incident to tell him that the accused were the assailants. The prosecution would be perfectly entitled to call these people to give evidence of any identification they themselves made on the night but it appears they have not been identified and statements have not been taken from them.
It is obvious that there is a benefit for the accused to invite the jury to see the caller’s identifications to V1 as tainting the reliability of his Facebook and photoboard identifications, and necessarily that of V2 as well. The disbenefit of that course is equally obvious. In Benfield I could not envisage a direction which would be sufficient to overcome the disbenefit.
I bear in mind that I effectively have to make eight decisions – one for each victim’s identification of each individual accused, in respect of both the Facebook and the photoboard identifications:-
1V1’s Facebook identification of D1
V1 says he had seen D1 before the incident although he had not spoken to him or learnt his name. His Facebook identification is therefore somewhere between the identification of a total stranger and the recognition of someone he knew. It might be that it is closer to the former than the latter. On the night there were factors enhancing V1’s ability to observe and remember D1 and factors inhibiting that ability. The two men were at the same table for something of the order of two hours. This was no fleeting contact. On the other hand V1 was probably affected by alcohol. He had returned a blood alcohol reading of approximately .092% by about midnight. The attack on him was traumatic, more traumatic than the attack on V2. V1 suffered injuries. Before being taken away by the ambulance V1 spoke to V2, and spoke to MH and together with V2 tried to make some brief description of the assailants. He turned his mind to identification of the assailants on the night.
There is no doubt that the events leading up to the Facebook identification of D1 and D2 the next day compromised the identification. MH told V1 the names of the assailants. MH had drawn his own conclusions from the very brief descriptions the victims had given him the night before. The fact that he knew both accused and knew that they were at the same table as the victims led him to the conclusions he drew. Both accused were Facebook friends of MH. It is unclear whether MH showed V1 the Facebook photographs of both accused the next day or whether V1 looked at the Facebook photos on his own after MH left his house.
There is no question but that the Facebook identification is liable to greater error than a properly conducted police line-up or photoboard array. There is in the case of V1 the possibility of a displacement effect regarding D1. He had seen D1 before. There is the risk that he recognised on Facebook the man he had seen before the party rather than the man who assaulted him. He may have recognised a man at the table rather than the man who assaulted him. With the Facebook photo he sees possibly only D1 depicted. There was no one to compare him with. Add to that the identification by MH.
These are not minor frailties of the Facebook identification. Nevertheless at a time when Facebook is ubiquitous I do not think it is impossible to frame directions to the jury which alert them to those frailties and which warn them about the care they must take before accepting a Facebook identification. I think the probative weight of the identification outweighs the prejudicial effect and the prejudicial effect can be removed by an appropriate direction.
The telephone calls from other unidentified people require separate consideration. Those calls appear to have been received by V1 before he spoke to police on the 30th of June 2016 but my tentative impression from V1’s statement of the 3rd of July 2018 is that the calls were received after he made the Facebook identification. In a way the forensic difficulty caused to the defendants by raising the phone call evidence is similar to the difficulty caused by raising MH’s evidence. Like the telephone callers MH has made his own identification of the accused. The only difference is that MH is identified and can be cross-examined about the thought processes which led him to his identification.
In Benfield (supra) I could not envisage how a jury direction could be crafted to remove the prejudicial effect of the identification by a third party being communicated to an identifier. In this case there are several people, all but one presently unidentified, who communicated with the identifier V1.
On reflection, I think that at a time when some jurors at least might be familiar with Facebook it might be possible to explain sufficiently forcefully to a jury that great care has to be taken with Facebook identification, particularly where, as here, other unidentified people have communicated their own unknown thought processes to V1. The direction would emphasise that the evidence, such as it is, of other people identifying the accused cannot be used in support of that identification. That would be an impermissible use of that evidence.
The only permissible use is in effect the reverse – the evidence that others have told V1 about the accused can only be used to cast doubt on the reliability of V1’s identification, not to support it.
Unsurprisingly the facts of this case are different from the facts in the cases I have been referred to. While I do not find the question of the exclusory discretion an easy one I think the frailties of V1’s Facebook identification of D1 are matters for the jury. I do not exclude the Facebook identification.
V1 had some knowledge of D1 before the night. He had a reasonable opportunity to observe him during the night. I think that an adequate direction can be given to the jury warning them of the impermissible uses of some evidence and the dangers involved in the Facebook identification.
I decline to exclude V1’s Facebook identification of D1.
2V1’s Facebook identification of D2
This identification evidence is different in two respects. V1 had no prior knowledge of D2. While he said in his statement of 30th of June 2016 that he had seen both males before, he qualified that in his statement of the 3rd of July 2018 by saying that he had only seen D1 before.
On the other hand it appears that the argument which precipitated the assault was between V1 and D2. For that reason V1’s contact with D2 might be more memorable and reliable than his contact with D1.
I see no reason to discriminate between V1’s identification of the two accused. I decline to exclude V1’s Facebook identification of D2.
3V2’s Facebook identification of D1
This identification is subject to the same frailties as V1’s identification of D1 with the added contamination caused by V1’s own communication with V2. V1 sent V2 screenshots of both accused and said that they were the assailants. In my view it is unrealistic and unfair to the prosecution, to admit V1’s identification but not that of V2. The jury would have to be given a very clear direction that V2’s Facebook identification is contaminated by V1’s identification. The weight of the identification evidence is for the jury and they would be very likely to give V2’s Facebook identification less weight than that of V1.
I bear in mind that V2’s identification is the identification of a stranger. He had no prior knowledge of either accused. However he had much the same opportunity as V1 to observe both accused on the night.
I decline to exclude V2’s Facebook identification of D1.
4V2’s Facebook identification of D2
I see no reason to distinguish between V2’s identification of each accused. I decline to exclude V2’s Facebook identification of D2.
5V1’s photoboard identification of D1
There can be no doubt that the earlier Facebook identification compromises the reliability of the photoboard identification made by V1 14 months later. The lengthy delay would have to be borne in mind. There is a risk that V1 is in fact identifying the person he saw in the Facebook photos rather than the assailant on the night. There may be some force in the criticism of the array, namely that there are too few people of Indian descent. That criticism would have less force in a case where, for example, the witness had said that the assailant was of dark appearance. Here however all the guests at the party were of Indian descent. Nevertheless I think that a sufficient direction can be crafted to warn the jury of the dangers.
I decline to exclude this evidence.
6V1’s photoboard identification of D2
This identification is different from the identification of D1 in the respect that V1 made the comment after making his selection that the others in the array ‘do not look like Indian’. The jury may well conclude that if that was the basis of V1’s identification of D2 then the weight of his evidence is slight. Nevertheless I think the evidence is for the jury to evaluate.
I decline to exclude this identification.
7V2’s photoboard identification of D1
V2 almost immediately selected the photo of D1. His identification is subject to the same weaknesses as those of V1. There is a danger of the displacement effect. There is the criticism of the array. V2’s identification has already been compromised by V1 sending to him the photoboard screenshots of both accused on the earlier occasion. Nevertheless I think these matters are for the jury to weigh up and a sufficient warning can be given. I decline to exclude this identification.
8V2’s photoboard identification of D2.
This identification differs from the identification of D1 in that V2 was much more hesitant in his selection of D2. At first he said he was not able to make a selection. It was only towards the end of the procedure that he made what could be described as a tentative identification. He said ‘maybe six’ in relation to the photo of D2. That tentativeness is reminiscent of the identification in the case of Crawford. While it is often unhelpful to compare the facts of cases the majority of the Court of Criminal Appeal in that case approved the admission of the evidence.
I decline to exclude this identification.
Postscript
This is a case where there are legitimate challenges to the identification evidence. If before trial new evidence comes to light which strengthens those criticisms then the prosecution will have to consider its position. As it is the prosecution would have to acknowledge the trial judge’s need to give the jury detailed warnings about the frailties of the identification evidence. Nevertheless as things stand I conclude that the identification is for the jury to weigh up.
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