R v Melissa Nicole Carpenter - [2011] ACTSC 71

R v MELISSA NICOLE CARPENTER [2011] ACTSC 71 (9 May 2011)

EVIDENCE – identification parades – refusal to take part in identification parade –requirements for effective refusal for Evidence Act 1995 ss 114 and 115 – no requirement for suspect to obtain legal advice – no requirement for suspect to be informed of all details of specific identification parade before refusal – refusal unless lawyer advises participation in identification parade is a refusal, not a conditional agreement.

EVIDENCE – picture identification evidence – digital photograph of suspect does not cease to be that photograph by being loaded onto a computer database, converted into “jpg” format, emailed, or copied into PowerPoint format, having its colour levels changed or having its pixelation or file size reduced or increased – photograph of suspect does not cease to be that photograph by reason of editing to remove an image of removable jewellery such as a small facial stud – no requirement for photograph used in identification process to show only the features specified by the witness.

EVIDENCE – identification processes – minor change in suspect’s appearance since offence was committed does not “protect” suspect from invitation to take part in identification parade or from use of photograph in photo board process.

Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (Cth)
Evidence Act 1995 (Cth), ss 114(1) and (2), 115, 137, 138(1)

Crimes Act 1900 (ACT), s 233, 235

Festa v the Queen (2001) 208 CLR 593
Papakosmas v The Queen (1999) 196 CLR 297
Parker v Comptroller-General of Customs [2009] HCA 7
Raymond Kevin Oakes v Comcare [1995] AATA 311
Robinson v Woolworths Ltd (2005) 64 NSWLR 612
R vSarlija [2009] ACTSC 127
Winmar v The State of Western Australia (2007) 35 WAR 159

Australian Passport Office 2011, Photograph Guidelines (Department of Foreign Affairs and Trade, 2011) viewed 1 May 2011

Odgers S, Uniform Evidence Law (Thomson Reuters: 9^th ed, 2010)

No. SCC 132 of 2008

Judge: Penfold J
Supreme Court of the ACT

Date: 9 May 2011

IN THE SUPREME COURT OF THE )
) No. SCC 132 of 2008
AUSTRALIAN CAPITAL TERRITORY )

R

v

MELISSA NICOLE CARPENTER

ORDER

Judge:  Penfold J
Date:  9 May 2011
Place:  Canberra

THE COURT ORDERS THAT:

The application to exclude identification evidence, in particular photo board evidence, from the applicant’s forthcoming trial is refused.

Introduction

Melissa Carpenter has been arraigned on two counts of aggravated robbery committed on 11 December 2007 and has pleaded not guilty to each count.

Application for exclusion of evidence from trial

Ms Carpenter has applied for identification evidence, in particular evidence of identifications made by each of the two complainants in respect of the robbery and obtained through the use of a “photo board” (the photo board evidence), to be excluded from her forthcoming trial.

“Photo board” identification

Section 235 of the Crimes Act 1900 (ACT) provides limited circumstances in which photographs or other pictures may be used to enable witnesses to identify suspects. The section lays down rules…

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.

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Details

Case: [2011] ACTSC 71
Decision Date: 9 May 2011

CaseChat Overview and Summary

In the case of R v Melissa Nicole Carpenter, the defendant applied for identification evidence obtained through the use of a "photo board" to be excluded from her trial. The application was based on various grounds, including issues with the identification process and the admissibility of the photograph used in the photo board. The court was required to determine whether the identification evidence obtained through the photo board process was admissible in the defendant's trial.

The court considered the legal issues related to the identification process and the admissibility of the photograph. The court found that there was no requirement for the defendant to obtain legal advice before refusing to take part in an identification parade, nor was there a requirement for the defendant to be informed of all details of the specific identification parade before refusing. The court also found that the digital photograph of the defendant did not cease to be that photograph by being loaded onto a computer database, converted into "jpg" format, emailed, or copied into PowerPoint format, having its colour levels changed or having its pixelation or file size reduced or increased. Additionally, the photograph of the defendant did not cease to be that photograph by reason of editing to remove an image of removable jewellery such as a small facial stud. The court further found that a minor change in the defendant's appearance since the offence was committed did not "protect" the defendant from the invitation to take part in the identification parade or from the use of the photograph in the photo board process.

Based on the court's reasoning, the application to exclude identification evidence, in particular photo board evidence, from the defendant's forthcoming trial was refused. The court found that the identification evidence obtained through the photo board process was admissible in the defendant's trial.

Orders

Orders of the court

The application to exclude identification evidence, in particular photo board evidence, from the applicant’s forthcoming trial is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Ms Carpenter has applied for identification evidence, in particular evidence of identifications made by each of the two complainants in respect of the robbery and obtained through the use of a “photo board” (the photo board evidence), to be excluded from her forthcoming trial. Section 235 of the Crimes Act 1900 (ACT) provides limited circumstances in which photographs or other pictures may be used to enable witnesses to identify suspects. The section lays down rules for how identifications must be sought if the process is permitted to be used at all, and makes various other provisions to ensure that the process is fair, is properly recorded, and can be checked by the suspect’s legal representative. Although the collection of images is commonly referred to as a “photo board”, the current practice is to collect electronic images and to use a computer screen to show the numbered images to the witness one at a time. The application was originally made in October 2008, and amended in November 2008. The amended application sought the following order in relation to evidence: The grounds on which the order was sought were expressed as follows: Sections 114(1) and (2), 115, 137 and 138(1) of the Evidence Act 1995 (Cth), and ss 233 and 235 of the Crimes Act, are set out in the Appendix to this judgment. For various reasons, the determination of the application proceeded slowly. A hearing began in March 2009, but was adjourned, partly because of other demands on the court’s time and partly because one of the police witnesses needed to check more carefully his records relating to the preparation of the photo board. The matter was not listed for hearing again until 4 November 2009, at which point it appeared that the factual matrix on which the application was to be determined had changed; the matter was again adjourned, this time for the filing of an agreed statement of facts, an agreed statement of the legal issues to be determined, and the prosecutor’s submissions by 21 November 2009, and the filing of submissions on behalf of the applicant by 3 December 2009. The prosecutor filed a statement of facts, a submission as to the relevant legal issues, and his further submissions, on 23 November 2009. The statement of facts helpfully identifies the evidence (mainly provided in affidavits) on which each element of it is based. For some reason the applicant’s submissions in reply, although dated 1 March 2010, were only filed in court on 11 June 2010. The matter was then adjourned for me to determine on the papers, subject to listing the matter for further argument if that seemed necessary. If consideration of the written submissions had revealed that some narrow issues or arguments needed further clarification, then re-listing the matter for brief argument would have been appropriate. However, having considered the lengthy written submissions in detail, and having noted in particular the apparent reluctance of counsel for the applicant to explain his arguments or to refer to evidence or authority, it did not seem to me that it was a necessary or appropriate use of scarce court time to invite him to address me on matters that he had not wished to address or explain in writing.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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