R v Heath Lance Chatters

[1998] TASSC 8

8/1998

PARTIES:  R
  v
  CHATTERS, Heath Lance

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  251/1997
DELIVERED:  4 February 1998
HEARING DATE/S:  4 February 1998
JUDGMENT OF:  Slicer J

Edited edition of reasons for judgment given orally.

CATCHWORDS:

Criminal Law - Evidence - Evidentiary matters relating to witnesses and accused persons - Identification evidence - Identification from photographs - Generally - Discretion to exclude.

Doney v R (1990) 171 CLR 207, applied.
Rozenes v Beljajev [1995] 1 VR, Pitkin v R (1995) 80 A Crim R, considered.
Aust Dig Criminal Law [6912]

REPRESENTATION:

Counsel:
           Crown:  J N Perks
           Accused:  A Betts
Solicitors:
           Crown:  Director of Public Prosecutions
           Accused:  Anita Betts

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  8/1998
Number of pages:  3

Serial No 8/1998
File No 251/1997

THE QUEEN v HEATH LANCE CHATTERS

REASONS FOR JUDGMENT  SLICER J

(GIVEN ORALLY)  4 February 1998

Challenge is made to the reception of evidence of a witness whereby she purported to identify a suspect by means of a photographic board.  The investigating officer had possession of statements made by the two victims of a home invasion and had taken those persons to a facility which permitted the making of a computer based image of a person matching the description afforded by the two witnesses.  The investigating officer made no connection with any particular suspect, but upon returning to her station showed the computer generated image to other officers.  One suggested that the image resembled the accused.  That line of enquiries was pursued since the male complainant, now deceased, had stated that he believed that one of the assailants had previously been taken to his home by a named young woman.  Further enquiry confirmed that a young woman had taken the accused to the home of the male complainant.  At that stage, the officer had cause for believing that the accused was a firm suspect to the crimes.  The process was both reasonable and fair.

The officer determined to interview the accused some days after the compilation of the computer enhanced depiction.  The officer had had no prior involvement with the accused, but a fellow officer, Constable Ward, advised her that in his opinion, given his prior involvement, it was unlikely that the suspect would co-operate in any interview or the conduct of an identification parade.  The officer, as a precaution against non-co-operation, obtained a number of photographs with a view to the compilation of a photo-book.  In accordance with protocol, and having taken advice, she decided not to conduct a photo-book identification exercise until she had interviewed the suspect and requested that he take part in an identification parade.  It is contended that such procedure was unfair, although it is difficult to ascertain the basis upon which it was so contended.  The protocol was based on the proposition that it is not necessarily appropriate to interview a suspect before photo-book identification.  Indeed, the protocol regards it as preferable that witnesses be first afforded an opportunity to attempt identification.  The reason is that a suspect may provide a clear explanation for conduct, or establish to the satisfaction of the investigators he or she had no involvement in the matter subject to investigation.  In such circumstances, further recourse to a photo identification process would be unnecessary.  Further, it may be appropriate to attempt to conduct an identification parade before witnesses are requested to view a range of photographs since such may avoid possible contamination of memory.  It is not necessarily the case that identification parades are always preferable to photographic identification (Murphy v R (1995) 85 A Crim R 286). In this case, the investigating officer had reason to suspect the accused without the use of a photograph book investigation and it was not unreasonable or improper to defer the procedure until the suspect had been interviewed and/or afforded the opportunity to take part in an identification parade. It was reasonable to request the suspected person to participate in an identification parade before the photographs were shown to the intended witnesses and there ought be no rigid rule as to the time of the conduct of the procedure (Carusi v R (1997) 92 A Crim R 52). The appropriate procedure will vary dependent upon the state of the investigation. In some cases, it may be necessary to have recourse to a photo-book enquiry before interview where no suspect has been identified without use of the procedure. In the circumstances of this case, there was nothing contained in the protocol or in the procedure followed by the investigating officer which creates any unfairness or impropriety as stated by the High Court in Cleland v R (1982) 151 CLR 1.

On 22 January 1997, two officers visited the accused at Risdon Prison.  I find that he declined, as was his right, to be interviewed or to take part in an identification parade.  This is not a case warranting consideration of the matters considered by the Full Court of the Victorian Supreme Court in R v Clune [1982] VR 1, or by the High Court in Alexander v R (1979) 145 CLR 395. Following refusal, the investigating officer compiled a photo-board which included a recent photograph of the accused. One of the complainants identified the accused by means of the photo-board. I am satisfied that there was nothing improper or unfair in the procedure adopted in the use of the attempted identification. The weight or efficacy of the evidence may well be challenged, but any conclusion as to its merit remains an issue for the jury. Whilst there may be a discretion to reject evidence on the ground that to receive it would be unfair in the sense that its reception would render any trial unfair in a general sense (Rozenes v Beljajev [1995] 1 VR 533), such does not directly attach to a question of unreliability in the sense that it is subject to factual or logical challenge. The question of reliability is one which ought remain the province of the jury. As the High Court said in Doney v R (1990) 171 CLR 207 at 214 - 215:

"Evidence that attracts a warning is evidence that has been adjudged, either generally or in the particular case, as having probative value such that, subject to warning, it can be taken into account by the jury in its deliberations.  Assuming an appropriate warning, the weight to be given to that evidence is as much a matter to be determined by inference based on the jury's collective experience of ordinary affairs as is the question whether evidence is truthful.  And, of course, the same is necessarily true of evidence that does not require a warning.

It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision.  Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty."

Its use and the dangers associated with such use will be the subject of a direction, but that is an issue separate from that of reception.

Different considerations may arise where there is impropriety in the methodology employed in the conduct of the procedure.  If there has been an unrepresentative selection of photographs, use of a limited sample, or a manipulation of the intended witness by suggestion or direction, then the evidence is flawed, not because it is unreliable or subject to challenge as such, but because the means employed by the investigating officers render the nature of the evidence unsafe.  The use of improper or unfair methodology taints the evidence obtained in the same way as a defective scientific test, a retouched photograph or an altered electronic recording is rendered inadmissible because it is not "real" evidence but can be regarded as either fabrication or removed from reality.  But evidence which is real, unaltered or untainted by improper or defective methodology ought not be excluded simply by reference to arguable weakness.  Cases involving the reliability of evidence given by informers (R v Turner & Ors (1975) 61 Cr App R 67, R v Falzon [1990] 2 Qd R 436, R v McLean and Funk, ex parte Attorney-General [1991] 1 Qd R 231) may likewise be regarded as tainted by the procedures adopted to achieve the procuring of evidence rather than inherent unreliability. In Chidiac v R (1991) 171 CLR 432, the High Court permitted the reception of evidence of "unattractive" accomplices and there was no suggestion that the evidence ought to have been excluded in the exercise of discretion. That approach is consistent with that taken by the High Court in Pitkin v R (1995) 80 A Crim R 302, where evidence of a witness that a photograph of the accused "looked like" the offender was held to give rise to an unsafe verdict but, as the court stated at 306:

"In the context of the above danger of prejudice to an accused in prosecution evidence of identification by a witness's earlier selection of a photograph or photographs, ordinary considerations of fairness dictate that any such evidence be subjected to careful scrutiny before it is accepted as constituting evidence of positive identification.  If words which are reasonably capable of being understood as consistent with an absence of positive identification are used without further explanation or elucidation, there is no question of impugning the language of the witness in denying the independent efficacy of the words as positive identification.  All that is involved in such a denial is the application of the fundamental principle that proof of guilt must be beyond reasonable doubt."

The evidence of the witness as to photo-book identification and that of the officer who conducted the procedure is admissible and there is no cause for the exercise of any discretion to exclude it.  The evidence will be received on the trial.