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.
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Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Kearney

Details

AGLC: R v Kearney [2013] SASC 121
Case: [2013] SASC 121
Decision Date

CaseChat Overview and Summary

In the matter of R v Kearney, the defendant was charged with assault occasioning bodily harm and assault causing actual bodily harm. The case involved a dispute over the defendant's identity as the second assailant in an incident at a hotel. The court had to determine whether the identification of the defendant by the witnesses was reliable and admissible in court.

The primary legal issue before the court was whether the identification of the defendant by the witnesses was tainted by an earlier identification process that was potentially suggestive. The court had to consider whether the identification process was reliable and whether the defendant's right to a fair trial was compromised. Additionally, the court had to decide whether the CCTV footage taken at the hotel on the night in question could be used to identify the defendant.

The court found that the identification of the defendant by the witnesses was not tainted by the earlier identification process. The court accepted that the witnesses had an expectation that there was a relatively high probability that a photograph of the defendant would be contained within the second folder after they had seen Mr Sanderson’s photo in the first folder. The court also found that the identification process was reliable and that the probative value of the photo board identification outweighed any risk of unfair prejudice. The court further found that the CCTV footage could be used to identify the defendant, provided that it was sufficiently clear to permit a positive identification to be made.

In conclusion, the court determined that the evidence of the Facebook photo identification and the photo board identifications by Ms Harrison and Mr Robertson should not be excluded. The court also found that the CCTV footage could be used to identify the defendant, provided that it was sufficiently clear to permit a positive identification to be made. The court did not find that the identification process was suggestive or that the defendant's right to a fair trial was compromised. The court found that the identification of the defendant was reliable and that the probative value of the identification outweighed any risk of unfair prejudice.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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