R v Keher No. DCCRM-98-2 Judgment No. D3778

[1998] SADC 3972

R v KEHER

Judge Robertson
Criminal

The accused seeks an order for the exclusion of the evidence of the identification of the accused by means of a photograph.

Mr Mead, counsel for the accused submitted that I should exercise my discretion (the Lee discretion) to exclude the evidence on the ground that it would be unfair to the accused to allow it go before a jury.

At pages 11 and 12 of the Record of Interview there were questions and answers relating to the accused participating in an identification parade.  Initially the accused indicated his willingness to take part in an identification line-up.  However, following some comments from Detective Niblett the accused indicated that although he could not see there was a problem with participating in a line-up he preferred to consult a lawyer first.  Shortly afterwards in the interview he said:-

“At this stage, I might just refuse the option.”

Constable Clarke, who was involved in the interview said that although his initial understanding was that the accused wanted to seek advice from a lawyer at some time after the interview he reached the conclusion, following the answer which I quoted a moment ago, that the accused did not wish to be involved in an identification parade at any time.  Constable Clarke acknowledged that it was the Police Department’s view that an identification parade was the best means of providing identification evidence.  He said he understood that it was the best method because people involved are present physically in contrast to an image on a photo where a photographic identification is undertaken.

Detective Niblett said he was aware that an identification parade was the best means of obtaining identification evidence.  He said in relation to the conversation at pages 11 and 12 of the Record of Interview that his understanding was that the accused was not seeking to speak to a solicitor immediately but that he would consult a solicitor sometime in the future.   That was still his understanding when the interview concluded. His position was that if the accused still refused the line-up after obtaining advice from a solicitor then a photographic identification would be undertaken.   He said that after the interview he no longer had any involvement in the matter.  It appears that the matters relating to the charge were left in the hands of Constable Clarke.

I accept the evidence of Constable Clarke.  In my view the comments of the accused regarding his involvement in an identification parade were in the end ambiguous.  Constable Clarke cannot be criticised for reaching the conclusion that the accused no longer wished to be involved in an identification parade.  It was a conclusion open as a result of what the accused said.  I also accept the evidence of Detective Niblett.  His understanding differed from that of Constable Clarke.  As I said the words were ambiguous and as a result it was possible for different conclusions to be reached.

It is clear from many court pronouncements that identification resulting from an identification parade is the most reliable form of identification evidence.  The comments of Gibbs C J in Alexander v The Queen (1980-81) 145 CLR 395 at 402 are relevant here:

“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 the opinion 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 he witness can be asked directly to identify the suspected person’. Reg. V Russell.”

At the end of the interview Constable Clarke and Detective Niblett had reached different conclusions.  They did not inform each other of what conclusion each had reached.  Detective Niblett ceased to have any involvement in the case after the interview.  It would appear from his record in the Police Department and having been a member of the CIB for some time that he was the police officer involved in the case with the most experience in investigating and prosecuting criminal charges.  He was aware of the importance of an identification parade and his understanding was that the accused had not closed that option at that time.

In my opinion, as he was withdrawing from any further involvement in the case, he should have satisfied himself that Constable Clarke was intending to   follow up with the accused the question of whether he was prepared to be involved in an identification parade.  I have no doubt that police officers lead busy lives and that Detective Niblett was likely to have been engaged in other duties immediately thereafter.  However, the courts have on many occasions spoken of identification evidence by means of an identification parade being the most reliable form of evidence.  As a result police officers should do everything reasonably possible to see that an identification parade is held.  Whilst the possibility of the accused consenting to participating in an identification parade was still alive in his mind then in my view he had an obligation to see that the accused was followed up.

In considering the Lee discretion it must be understood that in determining whether it is fair or not for the evidence to be admitted, it is not a question of whether the accused was treated unfairly but whether the reception of the evidence would be unfair to him (see: Cleland v The Queen (1982-1983) 151 CLR 1 at 18).

In the present circumstances there can be no doubt that the identification by means of photograph is probative.  It cannot be said it is of little or of no weight.  The conduct of the police officers does not disclose any impropriety.  It does disclose a communication breakdown.  Mr Mead submitted, inter alia, that the evidence should be excluded on the grounds of public policy.  He says the police have not fulfilled the obligation of determining whether the accused would participate in a line-up and therefore the Court would not admit evidence in those circumstances.  However, it cannot be the law that if an identification parade is not held where there may be some possibility that it may have been held and that possibility was not fully explored that the evidence should be automatically excluded.  This would fetter the discretion.  Taking all the matters which I have referred into account I am not prepared to exercise my discretion to exclude the evidence.  In my view the admission of the evidence of photograph identification is not unfair to the accused.

There is one further matter which I desire to raise.   There is no evidence that after the interview the accused was prepared to participate in an identification parade.  Whilst he did not consult a solicitor, due to Legal Aid procedures, until some 45 days after the interview it is not suggested that he or his solicitor advised the police that the accused wished to be involved in an identification parade.  In his evidence he did not indicate that after the interview he wished to participate in an identification parade.  True it is that by the time he consulted a solicitor the witness had already identified him as a result of an photograph identification procedure.  However, the accused was not aware of this at the time he consulted a solicitor.

The accused, in his evidence said that he understood an identification parade was the obvious choice for the police in obtaining identification evidence.  He also was aware from what was said in the interview at the police station that if the identification parade was not held then the police would use some other method of identification, although he said he was not aware of what other methods were available.

In my opinion, taking all the matters to which I referred into account, it can be inferred that if the accused had been invited to participate in the identification parade after the interview, he would have refused.  In my opinion this is a further reason why I am not prepared to exercise my discretion and exclude the evidence.

The second application made by the accused is for the evidence of all conversation between the accused and Constable Clarke at the accused’s home on 30 September 1997 be excluded except for two small section identified by Mr Mead. Further that the entire Record of Interview be excluded from evidence. It was Mr Mead’s submission that the first four questions of the conversation between Constable Clarke and the accused are authorised by Section 38 of the Road Traffic Act, 1961. Thereafter he submitted that having received those answers the investigation had “… hardened into an interrogation of a particular person who is likely to be charged with the crime unless he can exonerate himself” (see: The Queen v Szach (1980 23 SASR 504 at 583). He submitted that in accordance with the principles expressed in Szach fairness dictated that the accused should have been made aware of the motive of the crime about which he was being interrogated.

Ms Trengrove, counsel for the Crown, submitted that the conversation was admissible as it was authorised by Section 38 of the Road Traffic Act, 1961. She relied upon the decision of The Queen v Hooper (1995) 64 SASR 480 to support her submissions that the questions asked were for the purpose of obtaining information that might lead to the identification of a person who was driving a motor car that was reasonably suspected of having been used in the commission of an offence.

In my view, the first eight questions are authorised by Section 38; so too are the 10th question and answer on page 4 of Constable Clarke’s Declaration and the first and second questions on page 5 of his Declaration. I reject the submission that the balance of the questions and answers are authorised by Section 38 of the Road Traffic Act.

In my opinion, by the time Constable Clarke had received the information in the first eight answers the conversation had entered the interrogation phase as explained in Szach.  In those circumstances, in my opinion, at that point fairness dictated that the accused should have been informed of the nature of the offence under investigation.  By “nature of the offence” I mean not only reference to the specific offence but the particulars of the offence.  This was not done.  Accordingly, in the exercise of my discretion I exclude from evidence all of the conversation between the accused and Constable Clarke except those questions and answers I have identified. 

I now turn to the question of whether the entire Record of Interview should be excluded .  The first time the accused was informed of the particulars of the offence for which he had then been arrested was on page 5 at line 26 of the Record of Interview.  It was Mr Mead’s submission that the questions and answers prior to that should be excluded because of the principles laid down in Szach.  He submitted that if I excluded that part of the Record of Interview then I should exclude the remainder of the Record of Interview because it was tainted by the first part of the Record of Interview which was excluded.  He relied upon the decision in The Queen v Warner (1988) 49 SASR 125 at 127 to support his submission. He submitted that the scissors and paste method of putting in some evidence could not be applied here. He submitted that what the accused said earlier in the excluded part of the Record of Interview could not be divorced from what he said after he had been given details of the offence.

In my opinion the Record of Interview down to line 27 on page 5 should be excluded.  He was at the time of the Record of Interview arrested for the offence for which he now stands charged.  He should have been made aware of the nature of the offence for which he was charged.  The comments in Szach apply even stronger in these circumstances. This did not occur until the time I have mentioned. It is not practically possible to include the questions and answers which I have directed are admissible pursuant to Section 38 of the Road Traffic Act therefore the entire questions and answers must be excluded.

I am not of the opinion that the remainder of the Record of Interview should not be excluded from evidence.  The accused has not said in his evidence that if he had been informed of the particulars of the offence earlier that he would not have been prepared to be interviewed.  Furthermore, I am not of the view that the answers after the details of the offence were given to the accused are “tainted” by the first part of the interview or cannot be divorced from the first part of the interview which I have excluded. (See: Dennis v The Queen CCA - 8 December 1993, Judgment No. S4326).

Accordingly, I direct that the Record of Interview down to, but not including, the question on line 26 at page 5 be excluded from evidence.  I direct that the remainder of the Record of Interview is admissible.