R v Kearney - [2013] SASC 121

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Voir Dire)
R v KEARNEY
[2013] SASC 121
Judgment of The Honourable Justice Blue
30 July 2013
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - PHOTOGRAPHS
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - PRESENTATION OF SINGLE SUSPECT
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - IDENTIFICATION BY STRANGER
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - PREJUDICIAL EVIDENCE
The defendant was charged with aggravated causing harm with intent to cause harm. The main issue was the identity of the attacker. The defendant challenged the admissibility of two categories of evidence which the Crown proposed to lead on the question of identity.
The victim and a witness were shown a photograph from Facebook of the defendant, who was not known to them at that time, and immediately recognised him as the attacker. They later identified the defendant in a photo board identification procedure. Before commencement of the trial and again at the conclusion of the evidence, the defendant sought exclusion of the identification evidence of both witnesses on the basis that it was more prejudicial than probative.
At the conclusion of the evidence, the Crown proposed to rely in closing address upon CCTV footage from the night of the attack for the purpose of identifying characteristics of the attacker and identifying the defendant. The defendant challenged the admissibility of the CCTV footage.
Held:
1. Applications to exclude the identification evidence of the victim and the witness dismissed (at [35]-[56], [64]).
2. The CCTV footage could be used for the limited purpose of tending to show that the attacker had tattoos on both arms but not for the other proposed identification purposes (at [61]-[63]).
Alexander v The Queen (1981) 145 CLR 395; R v Fuda (Unreported, Supreme Court of South Australia, 8 August 1993, Mullighan J); R v Murdoch (No 1) [2005] NTSC 75; (2005) 150 NTR 23; Murdoch v The Queen [2007] NTCCA 1; (2007) 167 A Crim R 329; Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593, discussed.
R v Hallam (1985) 42 SASR 126; R v Deering (1986) 43 SASR 252 ; Domican v The Queen (1992) 173 CLR 555; R v Mendoza [2007] VSCA 120; R v Dastagir [2013] SASC 26, considered.

R v KEARNEY
[2013] SASC 121
Ruling
BLUE J:

On 12 July 2013, the defendant was convicted after a trial by jury of aggravated causing harm with intent to cause harm.
At the beginning of the trial and again towards the end of the trial, the defendant applied for the exclusion of certain identification evidence in the exercise of my discretion on the ground that the undue prejudice caused by its admission outweighed its probative value. I declined to exercise my discretion to exclude the evidence and said that I would provide reasons for that ruling in due course.
Towards the end of the trial, I made rulings concerning the use which could be made of certain CCTV footage which had been tendered and received as an exhibit. I said that I would provide reasons for those rulings in due course.
Prosecution case
The prosecution case was that an incident occurred at the Tea Tree Gully Hotel in the early hours of Saturday, 22 October 2011. Mr Sanderson punched the complainant, Mr Robertson, in the head. A second person approached and punched Mr Robertson in the head, causing him to fall unconscious. Mr Sanderson then stomped on Mr Robertson’s head with his feet and the second assailant continued to punch Mr Robertson. As a result of the incident, Mr Robertson sustained a fractured palate and lost two teeth. The prosecution case was that the defendant was the second assailant.
Mr Sanderson and the defendant were jointly charged. Mr Sanderson pleaded guilty and was remanded for sentence. The trial proceeded in respect of the charge against the defendant. The principal issue was identity.
The prosecution case on identity was dependent upon positive identification evidence by Mr Robertson and an eye witness, Ms Harrison.
Evidence on the voir dire
Evidence was given on the voir dire by witnesses including Mr Robertson, Ms Harrison and a friend of Ms Harrison who was not present on the night in question, Ms Harris. Their evidence can be summarised collectively as follows.
At about 2.00 am on Saturday, 22 October 2011, the lights in the hotel were turned on. Mr Sanderson - who was known to Ms Harrison but not to Mr Robertson - approached Mr Robertson, placed his arm around Mr Robertson’s shoulders and then punched him in the face. A second male, not known to either Mr Robertson or Ms Harrison, then approached and punched Mr Robertson in the head, causing him to lose consciousness. Ms Harrison was inadvertently hit in the incident, causing her to lose consciousness briefly.
On the following Tuesday, each of Mr Robertson and Ms Harrison attended at the Holden Hill Police Station to be interviewed (separately) by the police. The police typed a written statement by each witness. Each witness provided a description of the second assailant.
On the following Saturday, Ms Harrison and Ms Harris attended a party at the home of Ms Harrison’s boyfriend. There was discussion about the incident the week before. Ms Harrison said that the first assailant was Brad Sanderson but she did not know who the second assailant was. She described the second assailant, including that he had a distinctive neck tattoo. Ms Harris used her mobile phone to access the Facebook page of her friend Sarah and downloaded a photo of Sarah and a male person. She showed the photo on her phone to Ms Harrison. Ms Harrison reacted emotionally and said that the male was the second assailant. Ms Harris informed Ms Harrison that the name of the male was Luke Kearney.
At Ms Harrison’s request, Ms Harris sent the Facebook photo by mms to Ms Harrison’s phone. Ms Harrison onforwarded the photo to Mr Robertson’s mobile phone together with a text message saying, “I’ve found him”.
When Mr Robertson received the Facebook photo on his phone, he recognised the photo as that of the second assailant. He looked at the photo before he read the text message. He was told by Ms Harrison that the name of the person in the photo was Luke Kearney.
Some days later, on 4 November 2011, Ms Harrison was telephoned by Detective Malam. Ms Harrison emailed the Facebook photograph to Detective Malam at her request.
Subsequently, according to evidence given by Detective Malam on the voir dire, Detective Malam contacted the defendant and arranged for him to attend at the Holden Hill Police Station for the purpose of being arrested and charged. On 15 November 2011, he attended at the Holden Hill Police Station. He had sought legal advice. The “interview” was recorded and the record tendered on the voir dire. The defendant declined to answer questions in accordance with his legal advice. Detective Malam told him that she wanted to conduct a line-up identification and, if he did not wish to participate, she would revert to a photo pack identification. He said “no thanks”. Detective Malam subsequently informed Mr Robertson that a second person had been arrested and charged in relation to the incident and that his name was Luke Kearney.
On 17 December 2011, each of Ms Harrison and Mr Robertson attended at the Holden Hill Police Station to perform a photo pack identification procedure. A video of each procedure was tendered on the voir dire. Ms Harrison was shown a folder containing 12 photos and identified a photograph of Mr Sanderson as the first assailant. She was shown a second folder of 12 photographs, and identified a photograph of the defendant as the second assailant.
Mr Robertson was shown a folder containing 12 photos and identified a photograph of Mr Sanderson as the first assailant. He was shown a second folder of 12 photographs, and identified a photograph of the defendant as the second assailant.
Detective Malam in her evidence on the voir dire referred to her communications with Ms Harrison on 4 November 2011 and confirmed that she did not obtain from Ms Harrison or Mr Robertson the mms message sent by Ms Harrison to Mr Robertson and did not make any contemporaneous notes of her conversation with Ms Harrison on the topic. She did not take a statement from them of the circumstances in which each first saw and recognised the Facebook photo of the defendant until mid-2012.
Application to exclude identification evidence
The defendant relied upon the following grounds for exclusion of the identification evidence of Ms Harrison and Mr Robertson:
1.Evidence of each of Ms Harrison’s and Mr Robertson’s identification of the defendant in the Facebook photograph should be excluded because of the risk of unfair prejudice, since the witnesses were presented with the single photographs in suggestive circumstances.
2.Evidence of the photo board identification procedures (and consequentially of the Facebook identification) should be excluded because the defendant did not refuse to participate in a line-up identification procedure.
3.Evidence of the photo board identification by Mr Robertson and Ms Harrison should be excluded because of the risk of unfair prejudice due to the jury not fully appreciating the risks of mis-identification based on the contamination of the procedure by the Facebook photo seen a week after the incident.
4.Evidence of the photo board identifications should be excluded because Mr Robertson and Ms Harrison had an expectation that the defendant’s photo would appear in one of the photo boards.
It was necessary to address these grounds in turn but I did so taking into account that they are interrelated. The risk of mis-identification by reference to the Facebook photograph underlies the concern regarding that photograph having contaminated the photo board procedure. The use of a photo board procedure rather than an identification parade affects the quality of the identification evidence as a whole.
The defendant’s application was to exclude the whole of the identification evidence by Mr Robertson and the whole of the identification evidence of Ms Harrison. While each of the witnesses was to be considered separately, the defendant’s position was that, in respect of Mr Robertson, for example, both the Facebook photo identification and the photo board identification should be excluded and, if not, both stages of the identification should go before the jury. The defendant did not contend that, if I were to rule that the photo board identification by Mr Robertson, for example, should be admitted, I should exclude evidence of Mr Robertson’s identification of the Facebook photo. Similarly, the defendant did not contend that, if I were to rule that the Facebook photo identification by Mr Robertson should be admitted, I should exclude evidence of the photo board identification by Mr Robertson. There were obvious strategic reasons for this “all or nothing” approach and I determined the application on that basis. However, I necessarily had to consider the admissibility of the Facebook identifications and the photo board identifications independently of one another as well as taking into account the interaction between them.
I considered each of the identified grounds of exclusion in the context of the whole of the case to be presented. In particular, it was relevant that the identification evidence of Mr Robertson and Ms Harrison was the only positive identification evidence in the prosecution case. Without that evidence, there would have been no basis on which the defendant could have been found guilty of the offence beyond reasonable doubt.
Facebook photograph identification evidence
Risks of mis-identification of single photo
Identification by selecting one person out of several persons in a line-up is a superior method of identification to selection of one photograph out of several photographs because the latter is two-dimensional and static.[1]
[1] Alexander v The Queen (1981) 145 CLR 395 at 399-402 per Gibbs CJ, 409 per Stephen J, 426, 431 per Mason J (Aickin J agreeing) and 437 per Murphy J; Festa v The Queen (2001) 208 CLR 593 at [22] per Gleeson CJ (Hayne J agreeing) and [154] per Kirby J; R v Deering (1986) 43 SASR 252 at 253 per King CJ (Legoe and Olsson JJ agreeing).
Evidence of identification by selection from several photographs is nevertheless relevant and admissible,[2] as is evidence of recognition of a person alone[3] or from a single photograph.[4]
[2]    Alexander v The Queen (1981) 145 CLR 395 at 399-400 per Gibbs CJ, 408-409 per Stephen J, 430-431 per Mason J (Akin J agreeing) and 436 per Murphy J; R v Deering (1986) 43 SASR 252 at 253 per King CJ (Legoe and Olsson JJ agreeing); Festa v The Queen (2001) 208 CLR 593 at [22] per Gleeson CJ (Hayne J agreeing) and [48]–[51] per McHugh J.
[3]    Domican v The Queen (1992) 173 CLR 555; Festa v The Queen (2001) 208 CLR 593.
[4]    Murdoch v The Queen [2007] NTCCA 1; (2007) 167 A Crim R 329 at [69]–[81] per Angel ACJ, Riley J and Olsson AJ.
Where positive identification evidence is admitted, directions must be given to the jury identifying both generally and in the specific circumstances of the case the risks and dangers of relying upon positive identification evidence to find guilt established beyond reasonable doubt.[5]
[5] Domican v The Queen (1992) 173 CLR 555; Festa v The Queen (2001) 208 CLR 593 at [22] per Gleeson CJ (Hayne J agreeing), [48]–[51] per McHugh J, [154] per Kirby J.
A trial judge has a discretion to exclude positive identification evidence where it has been obtained unfairly by the police,[6] or where the unfair prejudice resulting from the admission of the evidence would outweigh its probative value.[7]
[6] R v Hallam (1985) 42 SASR 126 at 130 per King CJ (with whom Mohr and O’Loughlin JJ agreed); R v Deering (1986) 43 SASR 252 at 253 per King CJ (with whom Olsson and Legoe JJ agreed).
[7] R v Alexander (1981) 145 CLR 395 at 402-403 per Gibbs CJ and 411, 417-418 per Stephen J; R v Hallam (1985) 42 SASR 126 at 130 per King CJ (with whom Mohr and O’Loughlin JJ agreed); Festa v The Queen (2001) 208 CLR 593 at [23] per Gleeson CJ (Hayne J agreeing) and [51] per McHugh J.
A distinction has been drawn between identification from photographs in the pre-detection and post-detection phases. In general terms, where the police have arrested or charged a person, it is improper and unfair for the police to use photographic identification rather than a line-up unless the person concerned refuses to participate in a line-up. On the other hand, in the pre-detection phase, the public interest in the detection of persons who have committed a criminal offence tends towards non-exclusion of the evidence.[8]
[8] See generally Alexander v The Queen (1981) 145 CLR 395; R v Deering (1986) 43 SASR 252.
In Alexander v The Queen,[9] Gibb CJ said:
[9] (1980) 145 CLR 395.
The authorities support the conclusion that I have reached, which is that, as a matter of law, evidence of an identification made out of court by the use of photographs produced by the police is admissible. However, a trial judge has a discretion to exclude any evidence if the strict rules of admissibility operate unfairly against the accused. It would be right to exercise that discretion in any case in which the judge was of opinion [sic] that the evidence had little weight but was likely to be gravely prejudicial to the accused. In a case such as the present it seems to me proper for a trial judge, in deciding how he should exercise his discretion, to take into consideration that it is the duty of police officers investigating crime to take every precaution reasonably available to guard against the miscarriages of justice that can occur, and have in fact occurred, because of honest but mistaken evidence of identification, and that for this reason “only in exceptional cases should photographs be used at a stage when some particular person is directly suspected by the police and they are able to arrange an identification parade or some other satisfactory alternative means whereby the witness can be asked directly to identify the suspected person”: Reg. v. Russell (1977) 2 NZLR, at p 28 . If the trial judge admits the evidence, and the accused is convicted, the true question for the Court of Criminal Appeal is whether having regard to the whole of the evidence it would be so unsafe or unsatisfactory to allow the conviction to stand that to do so would amount to a miscarriage of justice. In considering that matter the Court of Criminal Appeal also will keep in mind the importance of ensuring that the most reliable evidence of identification is obtained in every case.[10]
[10] Ibid at 402-403.
Stephen J said:
However, the unacceptable price of avoiding the intrusion of photo-identification and all its consequences into the trial would be the abandonment of its use in the detection process, the police forgoing all photo-identification in their detection of crime lest it disqualify a potential identifier from giving essential evidence of identity at a subsequent trial. There is a solution to the problem, based upon a compromise. Courts may discourage its use by police after the detection process has come to an end by treating that use as likely to disqualify a witness from giving evidence of the accused's identity: they may at the same time tolerate its intrusion into the trial evidence so long as its earlier use has been in the actual detection of crime.
It is just such a solution that the courts have applied, attempting to reconcile the interests of the accused with those of the community by differentiating between the detection and the evidentiary process. Photo-identification thus remains available as an effective aid in the detection of crime, but will tend to be excluded from the trial evidence unless its intrusion be justified by its earlier use having occurred in the detection process. Where it is not excluded from the trial evidence the accused obtains some protection against its prejudicial consequences by the existence of that exclusory discretion, dependent upon a balance of prejudice against probative value, always vested in trial judges, who will also, where appropriate, warn the jury of the particular dangers of this form of identification.[11]
and Mason J (Aickin J agreeing) said:
The problems which afflict identification evidence have their origin in four principal sources: (a) the variable quality of the evidence much of which is inherently fragile; (b) the use by the police of methods of identification which, though well suited to the investigation and detection of crime, are not calculated to yield evidence of high probative value in a criminal trial; (c) the consequential need to balance the interests of the accused in securing a fair trial against the interests of the State in the efficient investigation and detection of crime by the police; and (d) the difficulty of accommodating the reception of certain types of identification testimony to accepted principles of the law of evidence.
…
Recognizing these dangers the English courts have tended to draw a distinction between an identification made in the course of investigating a crime, when the police may request a potential witness to make an identification from photographs, and an identification made after the accused has been taken into custody, when the use of photographs is frowned upon and the arrangement of an identification parade is urged as the course to be preferred. In the second situation the purpose of the identification is purely evidentiary; it is designed to produce evidence for use at the trial.
…
In my opinion the Australian cases demonstrate that identification from police photographs is admissible evidence, that its probative value may be important, that the judge has a discretion to exclude it when he considers its prejudicial effect outweighs that value, and that directions may be given to ensure that unfair use is not made of the evidence.[12]
[11] Ibid at 410-411.
[12] Ibid at 426, 430.

In R v Deering,[13] King CJ (Legoe and Olsson JJ agreeing) said:
Where there is a clear and definite suspect or where an arrest has been made the proper procedure to be followed is for the police to arrange an identification parade if the suspect or arrested person is prepared to participate in such a parade. If that procedure is not followed it gives rise to a discretion in the trial judge to exclude the evidence of identification by other means and that discretion will be exercised having regard to all relevant factors including, of course, the public interest in ensuring that persons who have committed crimes are convicted and punished for those crimes. It may be necessary to present photographs to an alleged victim of a crime at a stage of the investigation at which no person has been arrested and at which there is no definite suspect, in order to provide an opportunity for the victim to pick out the offender. The distinction between what Mr. Tilmouth in his submission has described as the pre-detection stage of an investigation and the post-detection stage of an investigation is referred to in Alexander's case. Such a procedure involves no impropriety.
…
In a case such as the present the judge is required to balance any unfairness which might result to the accused person from the use of photographs as well as the importance of courts insisting that the police observe proper investigatory procedures on the one hand against on the other hand the public interest in ensuring that guilty persons are brought to justice.[14]
[13] (1986) 43 SASR 252.
[14] Ibid at 253, 255.
In Domican v The Queen,[15] the wife of a shooting victim saw the defendant interviewed on television and recognised him as the gunman. Nine months after the incident, she identified the defendant from a group of photographs. The defendant appealed against his conviction on the ground, inter alia, that the trial judge’s warning to the jury on the dangers of identification was inadequate. The High Court upheld the appeal on that ground. The High Court held that a trial judge is required to give general warnings concerning the dangers of convicting on identification evidence as well as specific warnings tailored to the specific facts of the case. It was suggested that the identification evidence should have been excluded in the Court of Criminal Appeal but the High Court argument was confined to the adequacy of the direction. The purpose of the general and specific warnings is to ensure that the jury is aware of the dangers and risks involved in identification evidence.
[15] (1992) 173 CLR 555.
In Festa v The Queen,[16] a witness who observed a woman in the vicinity of and shortly before a robbery was asked by police officers to look for that woman on the day of the committal proceedings against a defendant. The witness gave evidence that he recognised the defendant when she came out of the lift at the courthouse. The defendant appealed against her conviction on the ground, inter alia, that the trial judge erred in the exercise of his discretion by not excluding the identification evidence. The High Court (Kirby J dissenting on this point) held that the trial judge had not erred in this respect. Gleeson CJ (Hayne J agreeing) said:
[16] (2001) 208 CLR 593.
For any one of a number of reasons, evidence of observations, including evidence of positive identification, may be made in circumstances which adversely affect its reliability. Those circumstances may be beyond anybody's control, or they may result, for example, from the way police have conducted an investigation.
…
But prejudice does not arise simply from the tendency of admissible evidence to inculpate an accused. It is unfair prejudice that is in question. Where evidence is relevant and of some probative value, prejudice might arise because of a danger that a jury may use the evidence in some manner that goes beyond the probative value it may properly be given. If there is relevant prejudice of that kind, it lies in the risk of improper use of the evidence, not in the inculpatory consequences of its proper use. If it were otherwise, probative value would itself be prejudice. All admissible evidence which supports a prosecution case is prejudicial to an accused in a colloquial sense; but that is not the sense in which the term is used in the context of admissibility.
The evidence of the four witnesses named in grounds 1 and 2 was of some probative value. However, the trial judge had a discretion to reject it, in the interests of fairness to the appellant, if he concluded that its probative value was outweighed by the danger of unfair prejudice to the appellant. He was invited to exercise that discretion, but declined to do so. That was a decision that was open to him in the circumstances of the case, and his discretion has not been shown to have been affected by material error, or otherwise to have miscarried. And there has not been shown to have been a miscarriage of justice.[17]
and McHugh J said
The evidence identifying Ms Festa as the woman seen on the days of the robberies was weak. The identifications were obtained in circumstances marked by an absence of the precautions usually taken in the identification of suspects. They were made in informal circumstances, as Ms Festa was entering a court building unaccompanied by any other women. No police officer kept a record of the identification process. No-one made notes of the process. No-one took photographs of the identifications or recorded them on video camera. By asking the witnesses to look out for the female participant and allowing them to remain together, Detective Holmes also removed the possibility of each witness spontaneously identifying Ms Festa as the woman he or she had seen.
But the weakness of relevant evidence is not a ground for its exclusion. It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task.
…
Positive-identification evidence has often proved to be unreliable. This Court has insisted that where identification evidence, direct or circumstantial, represents a significant part of the proof of guilt of an offence, trial judges must warn juries not only of the potential unreliability of that evidence but also of any particular weaknesses in the evidence, in the case being tried.
...
Much of the evidence was positive-identification evidence that required a Domican type direction. If such a direction was given, it could not be said that the trial judge, acting reasonably, must have excluded the evidence. In so far as the evidence was circumstantial identification evidence, nothing about it suggested that its prejudicial effect required its exclusion.[18]
[17] Ibid at [15], [22]–[23].
[18] Ibid at [50]–[51], [55], [67].
In R v Murdoch (No 1),[19] Ms Lees was a witness to the murder of Mr Falconio. Approximately three months later, she was told by police that a person suspected of the murder had been arrested on other charges. Ms Lees accessed an internet article which dealt with the arrest and stated that the defendant had been linked by DNA tests to the murder of Mr Falconio. The article contained a photograph of the defendant. Ms Lees gave evidence that she immediately recognised the photograph as being of the person who had murdered Mr Falconio, albeit he had completely changed his appearance. A month later, Ms Lees selected a photograph of the defendant from a photo board containing 12 photographs.
[19] [2005] NTSC 75; (2005) 150 NTR 23.
At the trial, the defendant applied for exclusion of the identification evidence by Ms Lees. Martin CJ declined to exercise his discretion to exclude the identification evidence. In relation to the internet photo identification, Martin CJ said:
The identification by Ms Lees of the accused in the photograph found during her search of the internet occurred in less than ideal circumstances. Ms Lees was aware that the accused was a suspect against whom the police were building a circumstantial case. The article stated that although police would not rely on DNA evidence to prosecute the accused, DNA tests linked the accused to the crime through a blood sample taken from the scene. The article conveyed to Ms Lees that the accused had been arrested in connection with the abduction and rape of a 12 year old girl and her mother.
Numerous authorities recognise the dangers associated with confronting a victim with a person unknown to the victim in circumstances which convey to the victim the fact that the person is a suspect.
...
The circumstances under consideration were significantly different from those that existed in Hallam and like cases. Although Ms Lees was aware that the police had a suspect who had been arrested in South Australia on other matters, when she accessed the internet Ms Lees was not expecting to see an article about the person who had been arrested. She thought she was about to read an article which was complimentary about her. She was unaware that there would be any images with the article. Upon seeing the picture, Ms Lees immediately recognised the person depicted as the person who had attacked her.
Notwithstanding the content of the article accompanying the image of the accused, the identification by Ms Lees was more in the nature of a spontaneous recognition of the person depicted in the photograph in circumstances where Ms Lees was not expecting to see an image of the suspect.
...
Although the area was dark and the events traumatic, Ms Lees saw the offender from a very close position under light and for ample time to gain a clear impression of the offender’s features. While the circumstances of identification of the internet photograph were less than ideal, the evidence is capable of significant probative value. It was a spontaneous recognition of the person in the photograph. Whether that spontaneous recognition was reliable or whether the reliability was adversely affected by the circumstances, including the content of the article, are questions of weight for the jury.[20]
[20] Ibid at [35]–[36], [40]–[41], [45].
In relation to the photo board identification, Martin CJ said:
Numerous authorities have recognised the dangers associated with identification that occurs after a witness has seen a photograph of a person unknown to the witness, but known to the witness as the accused or a suspect. This danger applies regardless of whether the identification that follows seeing the photograph is an identification by way of photo-board, identification parade or dock identification. Frequent reference is made to the “displacement” effect. There is also the potential problem of the “rogues gallery” effect because the photograph or group of photographs might convey to the jury that the accused has a criminal history. In addition, many authorities recognise the deficiencies of photo-board identification regardless of whether the witness has previously seen a photograph of the suspect or accused.
Notwithstanding these deficiencies, if the evidence is capable of probative value, albeit weak probative value, the evidence is legally admissible, but a Judge must carefully consider whether the evidence should be excluded in the exercise of the discretion.
The photographs under consideration are significantly different. Notwithstanding an underlying similarity, the direct front on view of the photograph on the photo-board is different from the slightly angled view on the internet. ...
...
In these circumstances, in my opinion the evidence possesses probative value. It is a fact relevant to an assessment of the reliability of the identification that shortly after seeing the photograph on the internet, Ms Lees positively identified a significantly different photograph of the accused. The weaknesses inherent in such evidence by reason of the previous viewing of a photograph on the internet can be explored in the presence of the jury and appropriate directions emphasising those weaknesses and the dangers associated with such evidence can be given. In my view, given appropriate directions, it is highly unlikely that a jury would misuse such evidence. The weaknesses and dangers can readily be understood. The probative value is not outweighed by the potential for unfair prejudice.[21]
[21] Ibid at [51]–[53], [54].
In Murdoch v The Queen,[22] the Court of Criminal Appeal dismissed the defendant’s appeal on the ground, inter alia, that Martin CJ erred in failing to exclude the identification evidence. Angel ACJ, Riley J and Olsson AJ said:
[22] (2007) 167 A Crim R 329.
As has been said, the evidence in the present case is silent as to the format of the article as it actually appeared on the website and as to the extent to which, if at all, Ms Lees absorbed any of the text prior to seeing the appellant’s photograph. Be that as it may, the critically important aspects for present purposes are these:
(a)In no relevant sense was the website photograph of the appellant presented to Ms Lees by the police for identification purposes. She accessed the website to view what a friend had told her was a complimentary article about her, with no expectation of seeing any such photograph;
(b)Even if it be accepted that she had read some of the relevant introductory text, she was unequivocal in her assertion that she spontaneously recognised the person depicted in the photograph. She said she would recognise him anywhere and had not been influenced by anything that she might have read;
(c)The learned trial Judge was of the opinion on the whole of the material before him and confirmed by Ms Lees’ actual evidence at trial that, having regard to her opportunities to observe her assailant at Barrow Creek and her evidence as to viewing the website, what occurred was in the nature of spontaneous recognition, in circumstances in which Ms Lees was not expecting to see an image of the appellant. By inference his reasons indicate an acceptance of the fact that her reaction to the photograph was the product of her clear memory of the events of the night in question and was not substantially affected or tainted by any knowledge that she may have possessed that the appellant was a suspect in relation to those events.
...
The learned trial Judge clearly recognised that any knowledge that Ms Lees may have had, at the time of spontaneous recognition, of the fact that the appellant was a suspect in relation to the events at Barrow Creek was a less than ideal situation. However, he considered that, given ultimate appropriate directions and warnings, whether the spontaneous recognition was reliable or whether it was adversely affected by the circumstances, including any content of the article read by Ms Lees, were essentially questions of weight for the jury.
That was a view to which he was properly entitled to come. Having regard to what he accepted was the spontaneity of the recognition, the potential for unfair prejudice did not outweigh the considerable probative value of the evidence. The learned trial Judge was justified in declining to exclude it in the exercise of his discretion.[23]
[23] Ibid at [74], [77]–[78].
In the present case, just as in the case of Murdoch, there were elements of suggestion in the recognition by each of Ms Harrison and Mr Robertson of the Facebook photograph of the defendant as the second assailant. In each case, Ms Harrison (corroborated by Ms Harris) and Mr Robertson gave evidence of spontaneous recognition of the second assailant when they saw that photo. On the one hand, in Murdoch Ms Lees gave evidence that she was not expecting to see a photograph of the assailant; whereas in the present case the circumstances were such that each of Ms Harrison and Mr Robertson must have had an expectation that they might see a photograph of the assailant. On the other hand, Ms Lees accessed an article about the police investigation which stated that Mr Murdoch was a suspect and had been linked by DNA, which is more strongly suggestive than in the present case.
The identification of the Facebook photo clearly occurred in the pre-detection phase. If it had not occurred, it is unlikely that the defendant would ever have been identified as a potential suspect. I had regard to the public interest referred to by the Court of Criminal Appeal in Deering “in ensuring that persons who have committed crimes are convicted and punished for those crimes”.[24] I considered that there was significant probative value in the identification by Ms Harrison and Mr Robertson of the Facebook photograph as depicting the second assailant, notwithstanding the deficiencies in respect of that process. On the other hand, I recognised that there was a risk of prejudice to the defendant that the jury might not appreciate the dangers and risks involved in that identification, including the circumstances of suggestion that this was indeed the second assailant. I took into account the warnings which I proposed to give to the jury identifying the dangers associated with this identification evidence. In all of the circumstances, I considered that the undue prejudice to the defendant did not outweigh the probative value of that evidence.
[24] (1986) 43 SASR 252 at 253.
In exercising my discretion, I had regard to the contention made on behalf of the defendant that Detective Malam was deficient in not obtaining a copy of the mms message sent by Ms Harrison to Mr Robertson in circumstances in which it is no longer available and was further deficient in not taking a contemporaneous statement from Ms Harrison and Mr Robertson on the circumstances of their seeing and recognising the Facebook photo in early November 2011 or making any contemporaneous notes about that aspect of her investigation. The prosecutor accepted that Detective Malam’s investigation was deficient in these respects. It was clearly desirable that Detective Malam address both matters in early November 2011 when the mms message was still available and Ms Harrison and Mr Robertson had a clear recollection of the circumstances of seeing and recognising the Facebook photograph. However, I did not consider that Detective Malam’s failures in this regard had a significant effect upon the evidence which Ms Harrison and Mr Robertson were capable of giving concerning that identification. Weighing Detective Malam’s conduct with the risks of the jury not appreciating the dangers of identification based on a single photo in suggestive circumstances, I was not persuaded that I should exercise my discretion to exclude the evidence.
Photo board identification evidence
Refusal to participate in line-up
In R v Fuda,[25] the defendant was identified by a witness selecting his photograph out of 16 photographs of different persons. Before that occurred, the following telephone conversation took place between a detective and the defendant:
[25] Unreported, Supreme Court of South Australia, 31 August 1993, Mullighan J.
DETECTIVE:                   I am obliged to give you the opportunity of going in a line-up. If you refuse to take part in a formal identification parade then we may use a series of photographs.
DEFENDANT:                  I don’t mind; use the photos. I know it wasn’t me.
DETECTIVE:                   I just want you to be aware that it is your right to have a line-up.
DEFENDANT:                  No. Just use the photos.
Mullighan J held that there was no refusal by the defendant to participate in a line-up because the police did not tell him that they wanted to arrange a line-up (as opposed to informing him that he had the right to participate in a line-up). He said:
The first matter of significance is that at no time, did Detective Vincent say to the accused that the police wanted to arrange a line-up and for him to take part in it … what [Detective Vincent] did was to inform the accused that he had a right to take part in a line-up and that he … was obliged to give him the opportunity of doing so. …
I am unable to conclude that the accused refused to take part in a line-up. I think it is likely that his attention from the real issue was deflected by the way in which Detective Vincent put to him the question of a line-up.[26]
[26] Ibid at 6-7.

The conversation on 15 November 2011 between Detective Malam and the defendant concerning identification procedures was as follows:
DETECTIVE MALAM: My intention now is to do an identification procedure with the victim. You have the right to take part in a line-up if you wish to. If you don’t wish to, then I’ll revert to a photo identification pack. Do you wish to take part in a line-up?
MR KEARNEY: No thanks (shaking his head)
The defendant’s counsel submitted that Detective Malam only offered the defendant an opportunity to participate in a line-up and the case is similar to Fuda. However, Detective Malam expressly said that it was her intention to do an identification procedure. She was not (merely) offering a formal opportunity to the defendant to participate in a line-up, but rather it was her proposal to organise a line-up and she intended to do so provided the defendant agreed to participate. In addition, the defendant’s response, unlike that of Mr Fuda, was unequivocal in saying that he did not wish to take part in the line-up which Detective Malam wished to conduct.
The defendant’s counsel submitted that Detective Malam asked this question casually as a “throwaway line” at the end of the interview and that this belied the significance of the matter. However, the entire “interview” was relatively short (four minutes duration). It comprised the reading to the defendant of his rights, confirmation that he had received legal advice and that he did not wish to answer any questions about the incident, a summary of the allegations and the discussion about the identification procedure. I did not regard the discussion about a line-up as casual in the circumstances. Counsel for the defendant submitted that Detective Malam did not explain what a line-up was. However, this is general knowledge and the defendant’s response demonstrated that he was aware of what a line-up was.
In all of the circumstances, I concluded that the defendant refused the opportunity to take part in a line-up.
Accordingly, I rejected this ground for exclusion of the photo board identification evidence. The defendant’s consequential challenge to the Facebook identification on the same ground failed consequentially.
Contamination
The defendant contended that the photo board identification evidence should be excluded because it was impacted by the Facebook photo identification.
The first contention was that, if the Facebook photo identification were to be excluded, the photo board identification evidence should be excluded consequentially. I decided to admit the Facebook photo identification evidence, which resulted in the premise for the first contention not being established.
The second contention was that, when they selected the photographs of the defendant in the photo board identification procedures, there was a strong risk that Mr Robertson and Ms Harrison were in fact selecting the face they remembered from the single Facebook photograph, rather than the face they remembered from the night of the incident. It was contended that the image of the Facebook photograph would have been impressed in their minds much more firmly than that of the assailant on the night, whom they had a very limited opportunity to observe. The basis for the argument for exclusion was that the jury would be unlikely to appreciate the full extent of the risk that the “displacement” effect occurred in the way described.
At the time that he undertook the photo board identification, Mr Robertson had been told by Detective Malam that the defendant had been arrested and charged as the second assailant. It was submitted on behalf of the defendant that this would have confirmed Mr Robertson’s view and removed any doubt he may have had that the person he had seen in the Facebook photo (who he knew was named Luke Kearney) was the second assailant and would have encouraged him to select from the photo board the person he remembered from the earlier photograph.
Courts have acknowledged the danger attached to an identification that is made by a witness who did not know the offender before the incident but has since seen a photograph of a person and learned that that person is a suspect or an accused. Stephens J explained in R v Alexander:[27]
Having been shown a photograph, the memory of it may be more clearly retained than the memory of the original sighting of the offender and may, accordingly, displace that original memory. Any subsequent face-to-face identification, in court or in an identification parade, may, on the identifying witness's part, in truth involve a matching of the man so identified with the remembered photograph, which has displaced in his memory his recollection of the original sighting.[28]
Yet in that role his earlier association with photo-identification will tend to infect his evidence.
[27] (1981) 145 CLR 395.
[28] bid at 409-410. See also Mason CJ at 426.
The Facebook photo appeared to have been taken when the defendant was younger than he appeared to be in the photo used in the photo board and at a time when he did not have a neck tattoo. His appearance in the Facebook photo was significantly different to his appearance in the photo board photo.[29] As in Murdoch, the differences between these two photographs is a factor against excluding the photo board identification.[30]
[29] Compare the observations of Martin CJ in R v Murdoch (No 1) (2005) 150 NTR 23 at [53] quoted at [x] above.
[30] R v Murdoch (No 1) (2005) 150 NTR 23 at [53]-[54].
I considered that, with appropriate directions, the jury could properly assess and appreciate the risk of contamination. In all of the circumstances, I did not consider that the circumstances surrounding the Facebook photo identification should result in exclusion of the photo board identification.
Expectation at time of photo board identification
Before Detective Malam showed either of the photo board folders to Mr Robertson, she told him that a photograph of the person involved in the incident under investigation may or may not be in the folder. After Mr Robertson had identified Mr Sanderson as the first assailant from the selection of photos contained in the first photo board, Detective Malam said the following:
Now, I’m going to go through that same procedure for the same incident but with the second person that assaulted you. Are you happy to carry straight on for that one? So, this folder is marked LK-1 and the same rules, so I will just leave you to look at the photographs and you just indicate to me if you recognise anyone.
It is contended on behalf of the defendant that Detective Malam’s reference to “with the second person that assaulted you” suggested, contrary to her introductory statement, that there was contained in the second folder a photograph of a person involved in the incident under investigation. It was submitted that Mr Robertson’s knowledge that the defendant had been arrested as the second assailant would have added to his expectation that a photograph of the defendant would be contained within the second folder.
I accept that Mr Robertson must have considered that there was a relatively high probability that there would be a photograph of the defendant contained in the second folder. However, even if he had not been told of the arrest of the defendant or that the second folder related to the “same incident but with the second person that assaulted you”, he would nevertheless have had such an expectation. In general, when witnesses are shown photo boards, they will normally have an expectation that there is a relatively high probability that there will be a photograph of someone who they recognise as the assailant. I did not consider that, assuming the jury received appropriate warnings, there was an undue risk of unfair prejudice which outweighed the probative value of the photo board identification or that otherwise I should exercise my discretion to exclude the evidence of the photo board identification procedure conducted by Mr Robertson.
In the case of Ms Harrison, her evidence was that she was not aware of the arrest of the defendant at the time she completed the photo board procedure. Detective Malam did not make any reference during the photo board procedure with her to the second assailant. Nevertheless, I accept that she would have had an expectation that there was a relatively high probability that a photograph of the defendant would be contained within the second folder after she had seen Mr Sanderson’s photo in the first folder. Again, I did not consider that, assuming the jury received appropriate warnings, there was an undue risk of unfair prejudice which outweighed the probative value of the photo board identification or that otherwise I should exercise my discretion to exclude the evidence of the photo board identification procedure.
Conclusion
In all of the circumstances, I determined that I should not exercise my discretion to exclude evidence of the Facebook photo identification or the photo board identifications by Ms Harrison and Mr Robertson.
CCTV footage
At the conclusion of the evidence and before closing addresses, counsel for the prosecution foreshadowed an intention to play the CCTV footage taken at the hotel on the night in question to the jury during closing address and invite the jury to make certain findings. The first finding was that the second assailant shown in the black and white video footage had tattoos on both arms and did not have a tattoo on the left side of his neck. The second finding was that the second assailant shown in the black and white video footage was the same person as a person shown in colour footage taken earlier that night in the entry area of the hotel and taken later that night immediately after the incident in the same area. The third finding was that the person shown in the colour footage was the defendant and, coupled with the second finding, the second assailant shown in the black and white footage was the defendant.
Counsel for the defendant objected to the use of the video footage for any of those three purposes. Counsel did not object to use of the black and white video footage for the purposes of depicting the incident itself, and that footage had earlier been tendered without objection during the trial and received as an exhibit.
It was common ground that, in principle, video footage can be used to identify an assailant provided that it is sufficiently clear to permit a positive identification to be made.[31] It was also common ground that, before the jury could be invited to undertake the identification suggested by the prosecution, it was a prerequisite that I be satisfied that a reasonable jury would be capable of making the specific identification proposed by the prosecutor beyond reasonable doubt. The relevant video footage was shown in Court in the absence of the jury and counsel made submissions about what could or could not be identified by viewing that footage. I further reviewed the footage in chambers.
[31] See, for example, R v Dastagir [2013] SASC 26 at [22]–[25] per Nicholson J.
It was conceded by the prosecutor that the CCTV footage, particularly the black and white footage of the incident itself, was of low quality. It was filmed from an angle, some distance from the relevant events. Those events occurred partly in the corner of the screen and partly off screen. The person identified as the second assailant stood with his back to the camera during much of the footage.
Before closing addresses, I ruled that a reasonable jury could be satisfied beyond reasonable doubt that the second assailant had tattoos on both arms and that the prosecutor in his closing address could invite the jury to reach that conclusion by viewing the black and white video footage. However, I ruled that, if the defendant made an admission that that is what the video footage showed, the admission would stand in place of any such invitation by the prosecutor. In light of my ruling, the defendant admitted that the second assailant appeared to have tattoos on both arms.
I ruled that a reasonable jury could not be satisfied beyond reasonable doubt that the second assailant shown in the black and white footage did not have a tattoo on the left-hand side of his neck. Accordingly, I ruled that the prosecutor could not invite the jury to view the black and white footage to reach that conclusion.
I ruled that a reasonable jury would not be capable of concluding beyond reasonable doubt that the second assailant depicted in the black and white footage was the same person as the person designated by the prosecutor in the colour footage. Accordingly, I ruled that the prosecutor could not use the colour footage in the way in which he proposed. As a result of that ruling, it was agreed that the colour footage would not be played to the jury and would not form part of the evidence before the jury.
Fresh application for exclusion
After the conclusion of the evidence and before closing addresses, counsel for the defendant renewed his application that I exclude the identification evidence which had been given by Ms Harrison and Mr Robertson. The application was made on the same grounds and submissions (which were adopted without elaboration) as had been made on the voir dire at the commencement of trial. I considered that the evidence adduced at the trial had not materially changed the position. In the exercise of my discretion, I declined to exclude that evidence.