R v Lockwood
[2018] ACTSC 26
•23 February 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Lockwood |
Citation: | [2018] ACTSC 26 |
Hearing Date: | 6 February 2018 |
DecisionDate: | 23 February 2018 |
Before: | Mossop J |
Decision: | The evidence of the complainant’s identification of the accused by reference to his Facebook page is not excluded by ss 114 or 137 of the Evidence Act 2011 (ACT). |
Catchwords: | CRIMINAL LAW – EVIDENCE – Evidentiary matters relating to witnesses and accused persons – pre-trial application – identification evidence – whether not reasonable to have held an identification parade – whether probative value is significantly outweighed by unfair prejudice EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – Visual identification evidence – use of Facebook profile photograph to identify the accused – not reasonable to have held an identification parade – probative value not outweighed by unfair prejudice – evidence of the identification of the accused by reference to his Facebook page not excluded |
Legislation Cited: | Evidence Act 2011 (ACT), ss 114, 114(2), 114(2)(b), 116, 137 |
Cases Cited: | Bayley v The Queen [2016] VSCA 160 IMM v The Queen [2016] HCA 14; 257 CLR 300 R v Yates [2002] NSWCCA 520 |
Parties: | Steven Dean Lockwood (Applicant) The Queen (Respondent) |
Representation: | Counsel P Bevan (Applicant) J Walker (Respondent) |
| Solicitors Bevan & Co (Applicant) ACT Director of Public Prosecutions (Respondent) | |
File Numbers: | SCC 211 of 2017 SCC 212 of 2017 |
MOSSOP J:
Introduction
On 28 January 2017, four men entered the unit of Brian Walters, who was punched, kicked, tackled, stabbed in the chest with a pair of scissors, repeatedly threatened to be killed and then “hog tied”, before his apartment was ransacked and burgled by the intruders.
Mr Walters recognised one of the men as an acquaintance he knew from time previously spent in custody at the Alexander Maconochie Centre. He could not identify the other assailants although he provided some limited descriptions of them to police.
Forensic evidence obtained by the police indicated that someone called Steven Lockwood had been in Mr Walters’ unit. Mr Walters told the police that he did not know anyone by that name and proceeded to search the name Steven Lockwood on “Facebook”, a popular social media website. He found a profile page of a person who he identified as one of his attackers. Mr Walters passed this information onto police. The profile page showed the accused.
Application
The accused, Steven Dean Lockwood, is to face trial on an indictment alleging aggravated burglary and intentional wounding of Mr Walters.
By Application in Proceeding, dated 22 January 2018, the accused seeks a pre-trial ruling that the evidence of the Facebook identification is not admissible in the trial. He alleges that the circumstances of the identification meant that it had little probative value, and any probative value is significantly outweighed by unfair prejudice. Further, the accused alleges that the identification is not admissible as no identification parade, that included the accused, was held before the identification.
In support of this application the accused has disclosed that his case at trial will be that, although the complainant was unknown to him, the accused did attend the complainant’s address with the co-accused for the purpose of obtaining marijuana and that whilst there, he had touched a container where his fingerprint had been found. That is, therefore, in relation to the charges that he is facing, an innocent explanation in relation to the presence of his fingerprint within the unit.
Law
The statutory provisions relevant to this application are ss 114 and 137 of the Evidence Act 2011 (ACT). Those provisions are as follows:
114 Exclusion of visual identification evidence
(1)In this section:
picture identification evidence – see section 115.
visual identification evidence means identification evidence relating to an identification based completely or partly on what a person saw but does not include picture identification evidence.
(2) Visual identification evidence presented by the prosecutor is not admissible unless –
(a) an identification parade that included the defendant was held before the identification was made; or
(b) it would not have been reasonable to have held the parade; or
(c) the defendant refused to take part in the parade; and
the identification was made without the person who made it having been intentionally influenced to identify the defendant.
(3) Without limiting the matters that may be taken into account by the court in deciding whether it was reasonable to hold an identification parade, it must take into account –
(a) the kind of offence, and the gravity of the offence; and
(b) the importance of the evidence; and
(c) the practicality of holding an identification parade having regard, among other things –
(i) if the defendant failed to cooperate in the conduct of the parade – to the manner and extent of, and the reason (if any) for, the failure; and
Note Fail includes refuse (see Legislation Act, dict, pt 1).
(ii) in any case – to whether the identification was made at or about the time of the commission of the offence; and
(d) the appropriateness of holding an identification parade having regard, among other things, to the relationship (if any) between the defendant and the person who made the identification.
(4) It is presumed that it would not have been reasonable to have held an identification parade if it would have been unfair to the defendant for the parade to have been held.
(5) If –
(a) the defendant refused to take part in an identification parade unless an Australian legal practitioner or legal counsel acting for the defendant, or someone else chosen by the defendant, was present while it was being held; and
(b) there were, at the time when the parade was to have been conducted, reasonable grounds to believe that it was not reasonably practicable for a person mentioned in paragraph (a) to be present;
it is presumed that it would not have been reasonable to have held an identification parade at that time.
(6) In deciding whether it was reasonable to have held an identification parade, the court must not take into account the availability of pictures or photographs that could be used in making identifications.
137 Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence presented by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
The applicant’s contentions
The application was based upon ss 114 and 137 of the Evidence Act.
So far as s 114 was concerned, the accused submitted that the Crown had not established:
(a)that it would not have been reasonable to hold an identification parade: s 114(2)(b); and
(b)that the identification was made without the person making it having been intentionally influenced to identify the accused: s 114(2).
In relation to the first point, the accused submitted that he became a suspect when the police received the fingerprint identification. Yet there was two months between the results of the fingerprint identification and when the complainant was told of the results. During this period an innocent explanation for the fingerprint might have been investigated without asking the complainant whether he knew a Steven Lockwood. On the second point, the accused submitted that telling the complainant the name of a suspect rendered any independent recollection impossible and was sufficient to constitute “intentionally influencing the witness to identify the defendant”.
The submissions made in relation to s 137 were:
(a)The probative value is to be determined upon the basis that the evidence will be accepted by the jury without consideration about whether it is reliable or credible: IMM v The Queen [2016] HCA 14; 257 CLR 300.
(b)A warning under s 116 of the Evidence Act would need to be given if the probative value of the evidence was not high.
(c)The complainant’s claim about having looked at five profiles on Facebook prior to identifying the one he recognised as one of the offenders was implausible having regard to the evidence of the solicitor for the accused in relation to a search for “Steven Lockwood” on Facebook.
(d)The identification of the accused went substantially beyond the features that were identifiable by reference to the Facebook photos.
(e)Finally:
Matters relevant to unfair prejudice are:
a. There was no identification parade, or offer of an identification parade;
b. The complainant was told Steven Lockwood’s finger prints were found on the container;
c. The complainant believed Steven Lockwood was one of the offenders;
d. For this reason, he searched Steven Lockwood on Facebook;
e. The first page contained a photo under the profile name Steve Lockwood and the complainant looked at that profile and claimed to identify the accused;
f. The complainant then gave a further description in his police statement describing dark-coloured tattooed is, consistent with the Facebook image;
g. There were no other pictures of persons of similar appearance for comparison;
h. The displacement effect.
Consideration
Section 114 of the Evidence Act
It is uncontroversial that s 114 is the relevant statutory provision as “picture identification evidence” referred to in s 114(1) is limited to evidence arising from the use of “pictures kept for the use of police officers”. Pictures on Facebook are not “pictures kept for the use of police officers”. Therefore the evidence in question in this case was “visual identification evidence” to which s 114 applied.
The submissions made in relation to whether it would have been reasonable to have held an identification parade require a more detailed understanding of the chronology of events.
On 4 October 2016, the Sentence Administration Board issued a warrant for the arrest of the accused.
On 26 October 2016, the accused failed to appear in the Magistrates Court in accordance with his bail undertaking. As a consequence, a warrant was issued by the Court for his arrest on 27 October 2016.
On 17 January 2017, the accused returned to Canberra from Adelaide.
The offences committed against the complainant occurred on 28 January 2017.
On 13 February 2017, Constable Szabo, the informant, was notified by the Fingerprint Identification Team of the Australian Federal Police that the fingerprints of Steven Lockwood had been found on protein powder tubs within the residence.
On 7 March 2017, the accused was arrested for failing to appear on 26 October 2016. He was granted bail on 8 March 2017 to appear on 4 April 2017. Conditions of his bail included that he report daily to the officer in charge of the City Police Station and that he reside at a specified address in Ainslie. There was no evidence as to whether he failed to comply with these obligations; conversely there is no evidence of any action to address any breach of bail conditions. However, on 4 April 2017, he did not appear in the ACT Magistrates Court and a warrant was issued.
On the evening of 22 April 2017, Constable Szabo advised the complainant of the forensic results and asked him if he knew anyone by the name of Steven Lockwood. He said he did not. She then arranged for him to attend City Police station at 4:30 pm the following day to provide a further statement in relation to the incident. Following this conversation, the complainant searched the name “Steven Lockwood” on Facebook. He saw a male with the Facebook profile name “Steve Lockwood” and immediately recognised him as one of the offenders from the incident.
On 23 April 2017, the complainant provided a written statement to police as a consequence of being told about the fingerprint identification evidence. Included in that statement was the following:
During the incident, I was sitting on the couch with half a pair of scissors being held in my neck whilst the offenders searched my residence. I had one of the offenders holding the blade to my neck, which was partially obstructing my view of the kitchen. That offender was the one with red hair and beard, who was wearing a green jumper and shorts.
I observed one of the offenders that I described as male, over 6 feet in height, of tanned complexion and of medium build searching through the kitchen. The offender had a shaved head, and dark coloured tattoos on his neck, arms and on his legs. The offender was wearing a dark coloured collared t-shirt and shorts. The offender was the one I recognised from the Facebook profile of Steven Lockwood.
I observed a male with the tattoos searching through the kitchen cupboards, fridge and freezer. During this time he was asking for money, and I said I had no more money than the twenty dollars I had provided to them. I also observed the male grab and open the protein powder tubs I had on a shelf between the cupboard and the fridge in my kitchen. I heard the tops crack off the tops off the tubs.
I had three large four to five kilogram tubs of Evolve brand protein powder on the shelf, which I had purchased about six months before the incident. I bought the tubs from the Australian Sports Nutrition store, on Lonsdale Street, Braddon in the ACT. I kept these tubs stored on that shelf since I bought them, and I was the only person who had access to them and used them.
The police prepared information alleging burglary, wounding and assault for a hearing on 4 May 2017.
Having regard to this chronology, the accused pointed to the periods of 7 and 8 March when the accused was in custody and between 8 March 2017 and 22 April 2017 when police knew of the address of the accused and would have been able to ask him to participate in an identification parade. He submitted that having regard to the terms of his bail conditions, which required him to reside at a specified address in Ainslie and to report to police daily, it would have been reasonably possible for the police to have made contact with him and asked him to participate in an identification parade.
Counsel for the Crown submitted that following 13 February 2017 the police did not know whether the complainant knew the accused and, as a consequence, did not know if there was an innocent explanation for the existence of the fingerprints on the protein powder containers. The earliest point at which the police believed that there was no innocent explanation for those fingerprints being in the apartment was 22 April 2017. Immediately following acquiring that knowledge, the complainant made his Facebook search and disclosed that information the next day to police. Following the discovery of the accused on Facebook, counsel for the Crown submitted that the outcome of any identification parade would have been suspect because of the displacement effect and that this provides another reason why it would not have been reasonable to conduct an identification parade.
In my view it would not have been reasonable to have held an identification parade at the point at which the police had no information to indicate that the presence of the accused’s fingerprints upon the protein powder containers was not innocent. Clearly, there may have been any number of reasons why fingerprints of a person may have turned up in the complainant’s flat. It would not have been reasonable to have held an identification parade solely because of the presence of the fingerprints within the flat. That only became a reasonable course following the conversation on 22 April 2016 which was consistent with the presence of the fingerprints of the accused on the protein powder containers not being innocent.
Following the receipt of that information, the circumstances almost immediately changed once again by reason of the uninvited search by the complainant of Facebook and his discovery of a profile which he identified as that of one of his attackers. Once that had occurred, an identification parade would not have been reasonable because its effectiveness as a means of reliably identifying the attacker of the complainant would have been undermined by his earlier discovery of the Facebook profile. Any subsequent identification parade would be open to the criticism that the displacement effect arising from his prior recognition of the Facebook profile would affect any identification that he made: Peterson v The Queen [2014] VSCA 111 at [48].
For these reasons I consider that “it would not have been reasonable to have held the parade” for the purposes of s 114(2)(b) of the Evidence Act. This provision is not a barrier to the admission of the identification evidence.
The applicant also submitted that it should be found that the complainant was “intentionally influenced” to identify the defendant within the meaning of s 114(2) of the Evidence Act. The evidence does not support this submission. What Constable Szabo told the complainant is set out above. The complainant was told about the existence of the fingerprint and asked whether he knew a Steven Lockwood. There is no evidence that the complainant was told that Mr Lockwood was a suspect. There is no evidence that Constable Szabo told him what she did with the intention of influencing the complainant to identify the accused. Rather she appears to have simply been determining the significance of the fingerprint result by ruling out any innocent explanation. There is no evidence that the police officer intended that the complainant, at that stage, undertake any identification and therefore even if it could be said that he was ultimately influenced in making the visual identification, it was not intentional on the part of the police officer.
Section 137 of the Evidence Act
In relation to the application of s 137, the section is concerned with “unfair prejudice”. It is not concerned with evidence which will cause “prejudice” to an accused by proving the case against him or rebutting a case which he puts forward. Rather it relates to there being prejudice which is “unfair” arising from a fact finder making a decision on an improper basis. This may arise in a variety of ways, a typical example being where it might lead a jury to adopt an “illegitimate form of reasoning or to give the evidence undue weight”: R v Yates [2002] NSWCCA 520 at [252].
The probative value of the identification evidence was substantial because it was made in circumstances where there was considerable opportunity to observe the person subsequently identified and where the distinctive features of the accused (bald head and distinctive pattern of tattoos) make it more likely that it is reliable. Evidence of identification would be significant because it rebuts the hypothesis which will be put at trial that the fingerprint in the unit arose from Mr Lockwood’s earlier attendance at the premises and positively identifies him as a person who was involved in the attack.
I do not accept the submission made on behalf of the accused that just because a direction to the jury under s 116 will be appropriate, it can therefore be concluded that the evidence has little probative value. The fact that the law has generally required great caution with identification evidence does not deny particular evidence in a particular case probative value. The requirement to give a direction will simply draw to the jury’s attention the necessity to take special caution in accepting that evidence and provoke them to consider, in the circumstances of the case, what weight to place upon the identification evidence.
Further, I do not accept the submission made on behalf of the accused that the identification evidence should be considered to be of low probative value because the complainant had seen “virtually a single photograph” under the name Steven Lockwood during his Facebook search and therefore never had to engage in any real identification exercise. That submission was based upon the evidence of a Facebook search for Steven Lockwood conducted by a solicitor for the accused. The affidavit of that solicitor deposes to the fact that he is a regular Facebook user and that on 18 January 2018 he logged into his own Facebook profile and searched the name “Steven Lockwood”. That produced search results which were annexed to his affidavit. They appear to be the product of a search performed on a desktop computer rather than a mobile phone. The results show no less than 15 Steven or Steve Lockwood’s and that the accused was the second entry in those search results. The position of the entry for the accused in the search results provided the basis for the submission that the complainant was readily directed to the accused on the results of Facebook search and did not, as the complainant asserts, undertake a search of four or five profiles before coming across the profile of the accused. I do not accept that the evidence permits the inference contended for by the accused. The Crown put on evidence demonstrating that the search algorithm used by Facebook is sensitive to the identity of the searcher. As a consequence, the search results generated as a result of a search done by the solicitor for the accused is likely to be different to those generated by a search done by the complainant. Further, insofar as the accused placed reliance upon the evidence in his solicitor’s affidavit showing that the location of some of the owners of the Facebook profiles were displayed in the search results, there was no evidence illustrating that similar information was displayed in the search results of the search undertaken by the complainant on his mobile phone.
As will be apparent from the list of matters said by the accused to constitute “unfair prejudice” (see [11](e) above), the actual unfair prejudice was not clearly identified. It is most likely to be the risk that evidence which is of low probative value be given undue weight in the circumstances. However, I am not satisfied that the evidence demonstrates a risk of unfair prejudice of any magnitude. First, the jury will be given a direction under s 116. Second, the identification evidence is not of low probative value. Rather, given the circumstances in which it was made, it is likely to be of significant probative value. That is because of the distinctive appearance of the accused (his bald head and pattern of tattoos), the extent of the opportunity that the complainant had to observe him over a period of time (notwithstanding the stressful circumstances in which that observation was made), and the extent to which it corroborates other evidence to be led in the prosecution case. The factual circumstances of the present case are distinguishable from the circumstances in R v Smith (No 3) [2014] NSWSC 771 and Bayley v The Queen [2016] VSCA 160 rendering the outcomes in those cases of little assistance in determining the appropriate ruling in the present case.
I am not satisfied that the probative value of the evidence is outweighed by the danger of unfair prejudice to the defendant.
Ruling
The ruling of the Court is therefore:
1. The evidence of the complainant’s identification of the accused by reference to his Facebook page is not excluded by ss 114 or 137 of the Evidence Act 2011 (ACT).
| I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 23 February 2018 |
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