R v Hinder
[2019] ACTSC 26
•20 February 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Hinder |
Citation: | [2019] ACTSC 26 |
Hearing Date: | 22 January 2019 |
DecisionDate: | 20 February 2019 |
Before: | Burns J |
Decision: | See [13], [15] and [26]-[27] |
Catchwords: | EVIDENCE – Admissibility of identification evidence – whether the identification evidence is visual identification evidence – whether the identification was made under intentional influence to identify the accused – admissibility of alleged admissions by accused – whether the accused made statements in the course of questioning by police per s 23V of the Crimes Act 1914 (Cth) |
Legislation Cited: | Crimes Act 1914 (Cth) ss 23V, 23B Criminal Law (Detention and Interrogation) Act 1995 (Tas) s 8 Evidence Act 2011 (ACT) ss 55, 114, 115, 135, 137, Dictionary pt 1 |
Cases Cited: | Festa v The Queen (2001) 208 CLR 593 Kelly v The Queen [2004] HCA 12; 218 CLR 216 R v Salcedo; R v Stretton (No 2) [2018] ACTSC 104 |
Parties: | Lochlan Hinder (Applicant/Accused) The Queen (Respondent/Crown) |
Representation: | Counsel Mr R Davies (Applicant/Accused) Ms S Janackovic (Respondent/Crown) |
| Solicitors Legal Aid ACT (Applicant/Accused) ACT Director of Public Prosecutions (Respondent/Crown) | |
File Number: | SCC 220 of 2018 |
BURNS J:
The accused, Lochlan Hinder, is awaiting trial on a charge of aggravated robbery. The trial is due to commence in the week commencing 12 March 2019. He has elected to be tried by judge alone. By an application in proceeding dated 16 November 2018 he seeks orders that certain evidence that the Crown proposes to lead at his trial be excluded. This evidence falls into two categories: the evidence of the accused’s mother and sister that a person depicted in closed circuit television (‘CCTV’) footage of the offender could be the accused, and evidence of alleged admissions said to have been made by the accused to police when he was arrested.
The offence
The Crown alleges that on 1 December 2017 a male person entered the subway store at Manuka, pointed a knife at staff within the store and demanded money. He then jumped the counter and forced staff to give him cash from the cash register. The male then jumped back over the counter and left the store, taking approximately $1500 in cash.
The offender was captured on CCTV as he approached and later left the Subway store. The offender was wearing a hooded jacket with the hood up, meaning that only the front of his face was visible on the CCTV footage. The offender was wearing sunglasses. Police investigating the robbery released the CCTV footage to the public.
The resemblance evidence
On or about 24 April 2018, Ms Greta Hinder, the sister of the accused, made a written statement to police, in which she stated:
(a)on 1 December 2017 she was at her parents residence in Canberra, where she saw the accused, who was wearing bright clothing;
(b)on 4 December 2017 she viewed a video on her Facebook “news feed”, which had been posted by the ACT Policing Media page;
(c)the video showed the male alleged to have committed the robbery while he was walking through Manuka and while he was in the store committing the robbery;
(d)upon seeing the face of the male in the video (including a “close up” of the face) she “thought the male was my brother Lochlan”. She went on to say “I am not definitely sure whether the male within the video was Lochlan or not, as the male appeared to be paler and skinnier than what I recall Lochlan was”;
(e)she believed that the male person had the same facial features as the accused being a “heart shaped jaw line” and the same shaped lips;
(f)she immediately called her mother, Angela Hinder, and told her that the video appeared to show the accused.
Ms Greta Hinder told police that in the four years prior to April 2018 she had seen the accused only twice a year, and that they would either speak for 30 minutes or watch a movie.
On 18 April 2018, police showed Ms Greta Hinder three images and four video clips. She recognised the images to be the ones she saw on the ACT Policing Media page. Looking at those images, she was not sure whether the male depicted was the accused. She said that the lips and jaw were similar but she could not be certain. With regard to the video clip she said that the male depicted had “the same demeanour and walk” as the accused. She did not recognise any of the clothing worn by the male in the video.
On 16 April 2018, the mother of the accused, Ms Angela Hinder, provided a statement to police in which she said (relevantly for present purposes):
(a)during November and December 2017 the accused was staying at their residence in Hughes, ACT;
(b)on 5 December 2017 she received a phone call from her daughter, Greta Hinder, who told her about video footage of the robbery published by ACT Policing and that the offender looked like the accused;
(c)Ms Angela Hinder went on the internet and read a report which described the offender on as about 5 foot 8 inches tall. On that basis she was satisfied that it was not the accused;
(d)she then viewed the footage posted by ACT Policing. She “recognised the male could be Lochlan”. She believed the male offender’s “face structure” matched that of the accused, and they appeared to have the same build.
On 16 January 2019, Ms Angela Hinder provided police with a supplementary statement outlining her contact with the accused for the purpose of demonstrating that she was familiar with his appearance in December 2018.
Consideration
As identification evidence, the evidence of Ms Greta Hinder and Ms Angela Hinder is virtually worthless. The Crown, however, does not rely upon their evidence as identification evidence, in the sense that they purport to say that the person depicted in the images and videos is the accused. The Crown seeks to rely upon the evidence as a type of circumstantial evidence, the circumstance being that the person depicted bears a physical resemblance to the accused, or at least as he appeared in December 2017. Counsel for the accused submitted that the evidence is not relevant, as it could not rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding: see s 55 Evidence Act 2011 (ACT) (‘Evidence Act’). I disagree. The fact that the accused has a physical resemblance to the alleged offender is evidence which could rationally affect the assessment of the probability that he is the offender: see Festa v The Queen (2001) 208 CLR 593 at [54]‑[56] per McHugh J. That, however, is not the end of the matter.
10. Evidence by a witness that an accused person resembles an alleged offender is identification evidence for the purposes of the Evidence Act: see the definition of “identification evidence” in Part 1 of the Dictionary to the Evidence Act. The evidence which Ms Greta Hinder and Ms Angela Hinder can give regarding the physical resemblance of the accused to the alleged offender is not excluded by s 114 of the Evidence Act for a number of reasons. That section applies only to “visual identification evidence” as defined in s 114(1). That definition excludes “picture identification evidence”. Picture identification evidence is governed by s 115 of the Evidence Act, and is defined to mean “identification evidence relating to an identification made completely or partly by the person who made the identification examining pictures kept for the use of police officers”. The videos and images viewed by Ms Greta Hinder and Ms Angela Hinder do not have the character of “pictures kept for the use of police officers”. As such, s 115 does not apply.
11. As the videos and images viewed by the witnesses does not fall within the definition of “picture identification evidence” in s 115, their evidence is “visual identification evidence” as defined in s 114(1) of the Evidence Act. Such evidence is inadmissible unless an identification parade that included the accused was held before the identification was made, or it would not have been reasonable to have held such a parade: s 114(2)(a) and (b). Even if one of these provisions is satisfied, the evidence is still inadmissible unless it “was made without the person who made it having been intentionally influenced to identify the defendant”: s 114(2). In the present case, it was not reasonable to conduct an identification parade because the relevant identification, in the sense that the witnesses assert that the offender resembles the accused, was made before the ability of the witness to give that evidence was known to the police. In addition, both witnesses were well acquainted with the accused such that they would obviously be able to identify him in an identification parade.
12. The question whether the evidence of Ms Angela Hinder should be excluded as containing an identification made after having been intentionally influenced to identify the accused is difficult. There appears to be no directly relevant authorities. On balance, I think it should be excluded. The determination of Ms Angela Hinder that the depictions of the offender in the videos resembled the accused was contaminated by the assertion of Ms Greta Hinder that this was the case. Ms Greta Hinder formed her determination with an uncontaminated mind, but Ms Angela Hinder formed her determination in the context of the assertion by Ms Greta Hinder that the person depicted resembled the accused.
13. I therefore exclude the evidence of Ms Angela Hinder to the effect that the person depicted in the CCTV footage, or photos taken from that footage, resemble the accused pursuant to s 114 of the Evidence Act.
14. If the trial of the accused was to be conducted as a jury trial, I would have excluded the evidence of Ms Greta Hinder that the person depicted in the videos and/or photographs resembled the accused in the exercise of my discretion under s 135 of the Evidence Act, or pursuant to the mandatory provisions of s 137. The evidence has very little probative value, and there would be a danger that a jury would give the evidence greater weight than it deserves, particularly bearing in mind the source of the evidence and her relationship to the accused.
15. As the accused’s trial is to be a judge alone trial, that risk is ameliorated to the extent that the evidence of Ms Greta Hinder, that the person depicted in the videos and/or photographs resembled the accused, should not be excluded.
The alleged admissions
16. The accused was arrested on 19 April 2018 by police at an address in Canberra. At the time police entered the premises the accused was in bed. Constable Alan Duong provided a statement in which he said that he had a conversation with the accused while the accused was lying on the bed:
I said: Lochlan?
He said: Hmm. Are you the Police?
I said: Yes.
He said: Fuck.
I said: You’re under arrest for the aggravated robbery of Subway Manuka on the first of December 2018. You don’t have to say or do anything but anything you do say or do may be used in evidence. Do you understand?
He said: It fucking took you long enough.
I will refer to this as the first alleged statement.
17. Constable Duong said that the accused appeared to have only just woken up, and to be upset by his arrest. He placed the accused in handcuffs but then removed them a short time later when the accused appeared to relax. Constable Duong said that the accused spontaneously said to him: “I’ve been waiting you (sic) to come arrest me for months. It’ll be good to get off the heroin. I’m sick of trying to steal eighty bucks a day.” I will refer to this as the second alleged statement.
18. The accused submits that the evidence of those alleged statements should be excluded by virtue of the provisions of s 23V of the Crimes Act 1914 (Cth). This section provides:
23V Tape recording of confessions and admissions
(1) If a person who is being questioned as a suspect (whether under arrest or not) makes a confession or admission to an investigating official, the confession or admission is inadmissible as evidence against the person in proceedings for any Commonwealth offence unless:
(a) if the confession or admission was made in circumstances where it was reasonably practicable to tape record the confession or admission—the questioning of the person and anything said by the person during that questioning was tape recorded; or
(b) in any other case:
(i) when questioning the person, or as soon as practicable afterwards, a record in writing was made, either in English or in another language used by the person during questioning, of the things said by or to the person during questioning; and
(ii) as soon as practicable after the record was made, it was read to the person in the language used by him or her during questioning and a copy of the record was made available to the person; and
(iii) the person was given the opportunity to interrupt the reading at any time for the purpose of drawing attention to any error or omission that he or she claimed had been made in or from the record and, at the end of the reading, the person was given the opportunity to state whether he or she claimed that there were any errors in or omissions from the record in addition to any to which he or she had drawn attention in the course of the reading; and
(iv) a tape recording was made of the reading referred to in subparagraph (ii) and of everything said by or to the person as a result of compliance with subparagraph (iii), and the requirements of subsection (2) were observed in respect of that recording; and
(v) before the reading referred to in subparagraph (ii), an explanation, in accordance with the form in the Schedule, was given to the person of the procedure that would be followed for the purposes of compliance with that subparagraph and subparagraphs (iii) and (iv).
(2) If the questioning, confession or admission, or the confirmation of a confession or admission, of a person is recorded as required under this section, the investigating official must, without charge:
(a) if the recording is an audio recording only or a video recording only—make the recording or a copy of it available to the person or his or her legal representative within 7 days after the making of the recording; and
(b) if both an audio recording and a video recording were made—make the audio recording or a copy of it available to the person or his or her legal representative within 7 days after the making of the recording, and inform the person or his or her legal representative that an opportunity will be provided, on request, for viewing the video recording; and
(c) if a transcript of the tape recording is prepared—make a copy of the transcript available to the person or his or her legal representative within 7 days after the preparation of the transcript.
(3) Where a confession or admission is made to an investigating official who was, at the time when it was made, engaged in covert investigations under the orders of a superior, this section applies as if the acts required by paragraph (1)(b) and subsection (2) to be performed were required to be performed by the official at a time when they could reasonably be performed without prejudice to the covert investigations.
(4) Despite any arrangement made under the Commonwealth Places (Application of Laws) Act 1970, this section applies to any offence under a law applied by that Act if the investigating official is a member or special member of the Australian Federal Police.
(5) A court may admit evidence to which this section applies even if the requirements of this section have not been complied with, or there is insufficient evidence of compliance with those requirements, if, having regard to the nature of and the reasons for the non‑compliance or insufficiency of evidence and any other relevant matters, the court is satisfied that, in the special circumstances of the case, admission of the evidence would not be contrary to the interests of justice.
(6) A court may admit evidence to which this section applies even if a provision of subsection (2) has not been complied with if, having regard to the reasons for the non‑compliance and any other relevant matters, the court is satisfied that it was not practicable to comply with that provision.
(6A) To avoid doubt, subsection (6) does not limit subsection (5).
(7) If a judge permits evidence to be given before a jury under subsection (5) or (6), the judge must inform the jury of the non‑compliance with the requirements of this section, or of the absence of sufficient evidence of compliance with those requirements, and give the jury such warning about the evidence as he or she thinks appropriate in the circumstances.
19. For the purposes of s 23V, a reference to “questioning a person” is a reference to questioning the person, or carrying out an investigation in which the person participates to investigate the involvement of the person in an offence: s 23B(6).
20. There is no dispute that at the time police attended the premises to arrest the accused, he was a suspect with regard to, at least, the robbery of the Subway shop at Manuka. There is also no dispute that at the time Constable Duong had a hand-held recording device available to him, but he did not activate it. In the course of the present application Constable Duong gave evidence. He estimated that between the accused making the first alleged statement and the second alleged statement only about two minutes elapsed. He agreed that it was possible that during that period of two minutes he may have mentioned to the accused that the accused was also a suspect with regard to a number of other robberies. He further said that he did not recall asking any questions about the subject matter of the second alleged statement before the accused made it. In his written statement, Constable Duong described the second alleged statement as being made spontaneously.
21. The issue raised by this application is whether these statements, or either of them, were made in the course of questioning the accused.
22. In R v Salcedo; R v Stretton (No 2) [2018] ACTSC 104, the accused Salcedo participated in a digitally recorded interview with police. The duration of the interview was approximately three hours. After the interview concluded, and while Salcedo was still in the interview room, he made a statement to police which the Crown submitted was an admission. The statement was not recorded. Salcedo objected to reception of the evidence at his trial, on the grounds that the requirements of s 23V had not been complied with. Loukas-Karlsson J determined that the statement was made while Salcedo was being questioned as a suspect, as Salcedo made the statement immediately after the interview, and immediately before two subsequent interviews (one for the purpose of seeking consent for an identification parade, and one for a forensic procedure). On that basis her Honour concluded that “[t]he interview was not over”.
23. In Kelly v The Queen [2004] HCA 12; 218 CLR 216, the appellant Kelly challenged his conviction for murder on the basis that evidence received at his trial should have been rejected on the ground that the evidence, an alleged admission made while in police custody, had not been recorded as required by s 8 of the Criminal Law (Detention and Interrogation) Act 1995 (Tas) (‘Tasmanian Act’). That provision excluded from evidence any admission said to have been made during the course of “official questioning”, unless there was a videotape of the interview during which the admission was made, or there was a reasonable explanation for videotaping the interview. The circumstances in Kelly are set out in the headnote to the report in the Commonwealth Law Reports:
During a videotaped police interview a murder suspect retracted an earlier unrecorded confession made by him to police and stated that the confession had been made under duress. Less than an hour after the interview was concluded the suspect allegedly said to police “Sorry about the interview – no hard feelings, I was just playing the game.” The statement was not made in response to any question asked by police. At his trial the impugned statement was admitted into evidence on the ground that it had not been made in the course of official questioning within the meaning of para (b) of the definition of “confession or admission” in s 8(1).
24. The majority of the High Court (Gleeson CJ, Hayne and Heydon JJ) said with regard to the term “in the course of official questioning”, at [52]:
The expression “in the course of official questioning” in s 8 of the Act marks out a period of time running from when questioning commenced to when it ceased. It renders s 8(2)(a) of the Act relatively narrow in the sense that it does not provide that video-recording is a condition for admissibility of all confessions made by persons who are suspected or ought reasonably to have been suspected of having committed a crime: video-recording is only a condition for admissibility of those made “in the course of official questioning”. It renders s 8(2)(a) of the Act relatively broad in the sense that it does provide that video-recording is a condition for admissibility of confessions made “in the course of official questioning”, without any limitation turning on whether the maker of the confession is in custody or under arrest. The requirement that confessions be video-recorded extends to confessions made anywhere so long as they are made “in the course of official questioning”, without any limitation turning on whether the maker of the confession is in custody or under arrest. The requirement that confessions be video-recorded extends to confessions made anywhere so long as they are made “in the course of official questioning” – whether in police stations, in police cars, at the scene of a crime, or during informal encounters. The difficulty of video-recording confessions in particular circumstances is met by s 8(2)(b)-(d) and (3)(a)-(d) of the Act. But whether the expression “in the course of official questioning” is viewed as making s 8(2)(a) narrow or broad, it stipulates a relatively clear criterion, suitable for application by police officers, whose usual procedures are formal and methodical.
25. The drafting of s 8 of the Tasmanian Act differs slightly from s 23V; the latter provision does not contain the qualifying adjective “official”. But as the majority of the High Court acknowledged at [49], for s 8 of the Tasmanian Act to apply there must be a process of questioning. The same can be said with regard to s 23V. In the present case I am not satisfied that the accused was being questioned at the time that he made the alleged statements. No process of questioning the accused had commenced. It may well be that the police were investigating the involvement of the accused in the offence of aggravated robbery, at least in a broad sense, but it cannot be said that the accused was participating in that investigation.
26. In my opinion, s 23V did not apply, and evidence of the accused’s alleged statements is admissible.
27. I direct that these reasons not be published, other than to the parties, until the accused’s trial is completed.
| I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 20 February 2019 |