R v Melissa Nicole Carpenter
[2011] ACTSC 71
•9 May 2011
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: 9th 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 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 process
The application was originally made in October 2008, and amended in November 2008. The amended application sought the following order in relation to evidence:
1.Identification evidence of the accused be excluded and, in particular, all identification evidence arising out of, or as a result of, the alleged victims viewing photographs and/or pictures, including videos and photoboards, be excluded;
The grounds on which the order was sought were expressed as follows:
a)such evidence is not admissible pursuant to section 114(2) of the Evidence Act 1995;
b)such evidence is not admissible pursuant to section 115(2), section 115(3) and section 115(5) of the Evidence Act 1995;
c)such evidence was obtained in breach of sections 235(1), section 235(2) and section 235(4) Crimes Act 1900 and such evidence should, by reason thereof, be excluded pursuant to section 138 of the Evidence Act 1995;
d)if such evidence be otherwise admissible then it should be excluded pursuant to sections 137 and/or 138 of the Evidence Act 1995.
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.
The applicant’s submissions, although filed nearly seven months after the prosecutor filed his statement of facts, barely refers either to that statement of facts or to any of the many affidavits from which that statement has been drawn. The prosecutor has advised that no agreement was able to be reached on the facts, but counsel for the applicant has not identified any particular facts that are in dispute, nor has he offered any evidence to contradict any of the evidence relied on by the prosecutor.
Noting that this application is for the applicant to make out, I do not understand why counsel for the applicant has declined to engage in any contest about the facts if his instructions are that there is evidence for a version of the facts that might be more supportive of the application. Whatever the reason, it presumably also explains why counsel’s submissions are largely uncluttered by reference to any facts relevant to this application. Be that as it may, the application needs to be dealt with, and so, with two exceptions that are discussed at [31] to [35] below, I propose to determine this matter on the basis of the statement of facts filed in November 2009 and the affidavits on which it relies.
Preparation of photo board
The preparation of the photo board in this case seems to have been complex, delayed and somewhat disorganised. Police attempts to describe the processes correctly were similarly disorganised. Senior Constable Simon Perriman, who coordinated the preparation of the photo board, made five statements, four of them expanding on or clarifying the description of the preparation process he had set out in his first statement, and three of them made after an abortive attempt to give oral evidence in March 2009 which ran into difficulties because SC Perriman did not have adequate records available in court. Despite this, and the provision of six more statements by five other people involved in preparation of the photo board, there still seem to be some gaps in the story of the creation of the photo board. However, as indicated at [12] above and in the absence of any conflicting evidence, this judgment generally relies on the evidence referred to in the prosecutor’s statement of facts and found in the various affidavits that have been filed in this matter.
The facts
Facts that do not appear to be in doubt
I am not aware of any challenge to the information set out at [15] to [29] below.
The alleged robbery took place in the early afternoon of 11 December 2007. The two complainants reported the alleged robbery to the police shortly after it occurred, giving descriptions of two offenders, one male and one female. The female complainant gave the following description of the female offender:
The first female (F1) I would describe as being Caucasian. She had lighter skin than [the male offender]. She looked to be in her mid-twenties. She had long brown hair with blond steaks [sic], which was straight and out, just below her shoulder blades. She was about 5’10” tall, and was a little bit overweight. She was wearing heavy black eyeliner.
I believe she may have had either one or two “La Bret” (beneath the lower lip) piercings, but I’m not sure.
The male complainant gave this description:
This person was a female Caucasian who I estimate to be about 25-29 years old. She was a quite heavy build with brown hair to her mid-back area. She had several blonde streaks in the front of her hair and was wearing black eye-liner.
The applicant and her co-accused were arrested at the ACT Magistrates Court around lunchtime on the day after the alleged robbery.
At about 6.00 pm that day Detective Sergeant Chris Burgess offered the applicant the opportunity to take part in an identification parade. After DS Burgess cautioned her and explained the consequences of a refusal to take part in an identification parade, the following exchange took place:
Q 16 Do you wish to participate in the line up parade?
A 16 Um, no.
Q 17 Okay. Do you agree that the time is now six O one pm?
A 17 Yeah.
Q 18Before I conclude, I should also advise you that if you wish to discuss this matter with a solicitor before making a decision you are welcome to do that.
A 18 Okay.
Q 19 You – you’ve refused.
A 19 Yeah.
Q 20But if you wish to review that decision, then you can – after you speak to a solicitor, you’re welcome to contact me and change your mind.
A 20 So, I can – I can, like, refuse my refusal?
Q 21Yeah, I can – if you like, before you make your decision, I can give you the chance to call a lawyer of your choosing now.
A 21Um, yeah, I could call my solicitor, but I’m pretty sure he would tell me not to do one.
Q 22 Mm. That’s entirely for you, I can’t comment on that.
A 22Yeah, I – I’ll – I’ll just – I’ll just not do, I’ll say I don’t want to do one now but I’ll – when I talk to my solicitor, if he does say I should do one, obviously, you know I’ll be ---
Q 23 Okay. So, do you agree the time is now six O two pm, by my watch?
A 23 Yeah.
Okay. This record of conversation is now concluded.
Sometime after 8.00 pm that night Constable Jocelyn Smith took a photograph of the applicant (the original photograph). At that time the applicant was wearing a stud above the left side of her upper lip.
On 13 December 2007, the applicant was charged in the Magistrates Court with one count of aggravated robbery, and bail was apparently refused.
On 19 December 2007, Constable Gary Cameron requested the preparation of a photo board for viewing by the complainants.
On 24 December 2007, SC Perriman began work on the preparation of the photo board by seeking help from the New South Wales Police Photo Identification Unit (the NSW Unit), to which he sent the applicant’s original photograph.
On 27 December 2007, Senior Constable Stephen Szekely from the NSW Unit altered the original photograph in one or possibly two respects:
(a)He removed the stud from the image.
(b)The prosecution statement of facts says that SC Szekely would give evidence that he altered the original photograph by filtering it “to bring the brightness and pixelation of the image into line with the other 11 photos”. This is not mentioned in SC Szekely’s statement, and the material in the statement of facts may have come from him to the prosecutor orally, or it may in fact have come from one of SC Perriman’s affidavits, in which he refers to altering the colour levels of the original photograph to make them more similar to those sent by the NSW Unit.
On 28 December 2007, SC Szekely emailed SC Perriman a collection of material including photographs of 12 women, one of which was the filtered photograph of the applicant without her stud (the altered photograph).
On 3 January 2008, SC Perriman sent two emails to the AFP Video Unit. The first email attached the material he had received from the NSW Unit (including the altered photograph of the applicant), as well as the original photograph. The second email attached eight of the individual photographs provided by the NSW Unit, and the original photograph.
Thus, as at the morning of 3 January 2008, the AFP Video Unit had copies of both the original photograph and the altered photograph.
On 9 January 2008, the applicant pleaded not guilty in the Magistrates Court; it seems that bail was again refused.
On 16 January 2008, the applicant was granted bail in the Supreme Court.
By 22 February 2008 the photo board was ready for use, and it was viewed that day by the two complainants, both of whom identified the applicant as the female offender. The same nine photographs were used for each photo board, but in a different order – I shall in this judgment refer to the photo board in the singular.
The prosecutor’s statement of facts relies on a statement made by Moustapha Jbeili, the officer responsible for creating a photo board out of the photographs sent to the AFP Video Unit, to the effect that he cannot recall the details of that work, and in particular cannot recall “how or why he selected the altered photograph of the Applicant for inclusion”.
Facts that may be in doubt
Which photograph was used in the photo board?
The application appears to have been based on the assumption implicit in Mr Jbeili’s statement, namely that the photograph of the applicant used in the photo board was the altered photograph prepared in New South Wales. A DVD of the photo board was in evidence, but was not shown in court. Having examined both versions of the photo board on screen, I believe that they in fact contain the photograph of the applicant with her facial stud. If this is correct, then most of the applicant’s arguments evaporate; however I propose to deal with the application both as made and on the basis of my different view of the facts.
Was the applicant in custody when the photo board was viewed?
The prosecutor’s statement of facts indicates that the applicant was granted bail on 16 January 2008. No evidence has been put before me suggesting that she was in any form of custody on 22 February 2008 when the photo board was viewed.
However, during checking of what was intended as the final draft of this judgment, a document was found on the Supreme Court file that raises a doubt about whether the applicant was in custody on 22 February 2008. There is a copy of a Magistrates Court bench sheet suggesting that on 20 February 2008 the applicant was remanded in custody by a Magistrate. Further checking turned up a Supreme Court record suggesting that a bail application by the applicant was listed for 22 February, and another Magistrates Court bench sheet dated 28 February suggesting that the applicant was by then on bail granted by the Supreme Court.
Although there were written submissions made on behalf of the applicant that might reflect an assumption that the applicant was in some form of custody on 22 February, counsel for the applicant did not deign in those submissions or otherwise to make any explicit challenge to the prosecution statement of facts (to the extent that it suggested that the applicant had been released on bail before that date and had not been taken into custody again), or to refer to the basis for his submissions that the applicant was in custody.
However, having accidentally come across court documents (as distinct from elliptical submissions) suggesting this possibility, I propose to consider the application on the basis of alternative scenarios, the first being that on 22 February 2008 the applicant was not in any form of custody, and the second being that on 22 February the applicant was still subject to the remand in custody that appears to have been ordered on 20 February.
Scope of application
The application as expressed at [5] above applies to identification evidence generally, but with particular reference to the photo board evidence. “Identification evidence” is defined in the Dictionary to the Evidence Act as follows:
identification evidence means evidence that is:
(a)an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where:
(i)the offence for which the defendant is being prosecuted was committed; or
(ii) an act connected to that offence was done;
at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time; or
(b) a report (whether oral or in writing) of such an assertion.
Despite the breadth of the order sought by the application, the identification evidence that has been mentioned in submissions and argument is solely the evidence of the identifications made as a result of viewing photo boards. Accordingly, I begin by refusing the application to the extent that it applies to any evidence except the evidence of identifications made as a result of viewing the photo board (the photo board evidence).
The arguments
The final submissions filed on behalf of the applicant in June 2010 do not reflect any revision or refinement of the original submissions to take account of the prosecutor’s statement of facts, or indeed of any other evidence. Accordingly I need to deal with all the grounds listed in the November 2008 application.
Admissibility under Evidence Act s 114
Counsel for the applicant says that the photo board evidence, of identifications made by the two complainants, is inadmissible under s 114(2). Section 114(2) excludes the admissibility of visual identification evidence except in certain circumstances. “Visual identification evidence” is defined in s 114 (1) as follows:
visual identification evidence means identification evidence relating to an identification based wholly or partly on what a person saw but does not include picture identification evidence.
“Picture identification evidence” is defined in the Dictionary to the Evidence Act by reference to the definition in s 115(1), which is as follows:
picture identification evidence means identification evidence relating to an identification made wholly or partly by the person who made the identification examining pictures kept for the use of police officers.
Picture identification evidence as defined appears to apply to photo boards as described at [3] and [4] above. In R vSarlija [2009] ACTSC 127 at [32] I assumed in the absence of evidence or argument to the contrary that a photo board prepared as described above was composed of “pictures kept for the use of police officers”, and that identification evidence to be given as a result of viewing such a photo board satisfied the definition of picture identification evidence in s 115(1). That assumption has not been challenged in this application.
Thus, the evidence covered by this application is picture identification evidence; s 114(2) does not apply to that evidence so the evidence could not be inadmissible under s 114(2).
Admissibility under Evidence Act s 115
Counsel for the applicant says that the picture identification evidence arising from the use of the photo boards is inadmissible under ss 115(2), (3) and (5) of the Evidence Act.
Pictures of people apparently in police custody (s 115(2))
Section 115(2) excludes picture identification evidence where the pictures examined suggest that they are pictures of persons in police custody. The applicant’s “Outline of Submissions” says: “the photographs used for the photo board all depict persons in police custody”. There is no reference to evidence for this assertion, but in any case s 115(2) is not concerned with whether the persons photographed were in police custody or not, only with whether the photographs suggest that they were.
At the hearing in March 2009, counsel for the applicant said that “those other photos suggest that those persons were in custody”. This is the sum total of counsel’s submissions in this respect.
As mentioned, I have examined the electronic versions of the photo board shown to the complainants. Each photograph shows the head and in some cases a small part of the neck of the woman concerned. Nothing has been pointed out on behalf of the applicant, and there is nothing I can identify, that would suggest that any of them are in police custody. Some of the women are wearing earrings, some are wearing make-up. None of them looks particularly cheerful, but being in police custody is only one of many reasons why a person might not look cheerful in a photograph. Some of the photographs look, if anything, more like photographs taken under the current Australian passport regime, which requires that a passport photograph “show your face square on ... show you looking straight at the camera ... be taken with a neutral expression and your mouth closed (not laughing or frowning)” (Australian Passport Office 2011, Photograph Guidelines (Department of Foreign Affairs and Trade, 2011) viewed 1 May 2011) than “mug shots” or components of a “rogues’ gallery”.
The colour levels are not consistent across all photographs, and the photograph of the applicant probably has the most intense colours of any of the photographs used. However, there are also differences in the tones and colour intensity of the other photographs. If the photographs were to be ordered according to colour intensity, there is no doubt that the applicant’s photograph would be at one end of the spectrum, but there are also photographs that are much paler than most of the others, so I do not think it could be said that the applicant’s photograph is clearly the odd one out.
I am satisfied that the photographs used in the photo board do not suggest that they are pictures of people in police custody, and therefore s 115(2) does not render the picture identification evidence inadmissible.
Prior photographs of people in police custody (s 115(3))
Section 115(3) excludes picture identification evidence if:
(a)when the relevant pictures were examined, the suspect “was in the custody of a police officer of the police force investigating” the offence concerned; and
(b)the picture of the suspect examined by the witness was made “before the [suspect] was taken into that police custody”.
Section 115(4) qualifies the exclusion in s 115(3) but not in any relevant way.
If the applicant was not in any form of custody on 22 February 2008 when the photo board was examined, then s 115(3) would not apply to this case.
If the applicant was still in custody on 22 February as a result of being remanded in custody on 20 February, it seems highly unlikely that she was by 22 February in the custody of a police officer rather than in the remand section of the Alexander Maconochie Centre. In the absence of evidence to the contrary, or argument that remand prisoners are in fact in police custody, I find that the applicant was not in the custody of a police officer on 22 February, and s 115(3) would also not apply to this case.
Accordingly, I am satisfied that s 115(3) does not apply in this case and therefore does not render the picture identification evidence inadmissible.
Examination of photo board while suspect in police custody (s 115(5))
Section 115(5) also applies to render evidence inadmissible, subject to certain exceptions, if the suspect was, when the photo board was examined, in “the custody of a police officer of the police force” investigating the offence concerned.
Whether on 22 February 2008 the applicant was not in any form of custody, or was in remand custody as mentioned at [52] above, I am satisfied she was not in police custody, so s 115(5) is irrelevant to the current application.
Compliance with Crimes Act s 235
The next argument made by counsel for the applicant is that the picture identification evidence was obtained in breach of ss 235(1), (2) and (4) of the Crimes Act and should therefore be excluded pursuant to s 138 of the Evidence Act.
Limits on use of photo board while suspect in custody (s 235(1))
Section 235(1) prohibits a photo board identification process if the suspect “is in custody in respect of an offence or is otherwise available to take part in an identification parade”, unless either the suspect has refused to take part in an identification parade or the holding of the identification parade would be unfair or unreasonable.
In his Outline of Submissions dated 11 November 2008, counsel for the applicant said:
the accused was in custody and was available to participate in an identification parade within section 235
Counsel says that the applicant was “otherwise available to take part in an identification parade”, but he has made no submissions, and referred to no evidence, in support of that assertion. I am satisfied that the applicant was not “available to take part in an identification parade” apart from her possible custodial status.
If the applicant was not in any form of custody on 22 February 2008, then there was no breach of s 235(1) in the conduct of the photo board process on 22 February 2008.
If in fact the applicant was in remand custody, then s 235(1) would have been applicable to the photo board process, so it is necessary to consider whether she had refused to take part in an identification parade or the holding of the identification parade would have been unfair or unreasonable.
Refusal to take part in identification parade
The first question is whether the applicant has refused to take part in an identification parade. The applicant’s consideration of the invitation to take part in an identification parade is set out at [18] above. At first glance it would appear, in the context of the explanations and cautions that preceded it, to have amounted to an adequate refusal to take part in any identification parade.
Counsel made the following submissions about why I should find that the applicant did not refuse to take part in an identification parade:
there was no refusal within s. 114(2) as there was no fully informed decision by the accused to refuse to participate – the accused did not have the benefit of legal advice and importantly was not advised as to the circumstances of the parade and how it was to be carried out; the accused’s ‘refusal’ ... was qualified and not absolute:
... no refusal has been established as the Crown has failed to show that there was an identification parade in respect of which the accused could have been properly asked to participate in and has failed to demonstrate that her words were the result of a free and conscious decision made in full knowledge of her rights.
... before there can be a ‘refusal’ within section 114 there must be (a) an actual identification parade in respect of which there can sensibly be a refusal and (b) the refusal to be operative must be absolute, which requires that it be made freely and with full knowledge of the accused’s rights, which also means in full knowledge of the consequences which may flow from a refusal.
The statutory provisions – s. 235 Crimes Act 1900 and s. 114, 115 Evidence Act 1995 – are to be construed contra proferentum in favour of the accused. Further in order to constitute a ‘refusal’ the accused must be aware of her rights:
Raymond Kevin Oakes and Comcare [1995] AATA 311, [58]-[66] per Forgie DP., A.M. Brenna M. & K.P. Kennedy M.
The prosecution’s submission that the accused made an ‘election’ on 12th December 2007 ignores the accused’s right to take legal advice and seeks to place an onus upon her. There is no statutory basis for this construction of sections 235 and 114.
An ‘election’ cannot be made unless there is in fact something in respect of which the election is to be made. Thus, until the investigating police officers had in fact organised an identification parade, the accused cannot ‘refuse’ to take part as it is not until that point is reached that the actual conditions and circumstances of the parade have been identified and communicated to the accused and until that occurs there cannot be an exercise of discretion by the accused about participating.
... the statutory task ... requires the court to find that the accused was aware of her rights at the time of the alleged refusal and that her refusal was in respect of an actual and identified identification parade. Unless that is found – and the prosecution bears the onus of proof – there cannot be ‘an identification parade’ in respect of which there has been a ‘refusal’.
These submissions can, I think, be summarised as that a refusal to take part in an identification parade is only effective for the purposes of ss 114 and 115 of the Evidence Act and s 235 of the Crimes Act if:
(a)the refusal is informed;
(b)the refusal is made after the suspect has received legal advice;
(c)the refusal relates to a particular identification parade that has been organised by the police; and
(d)the details of the identification parade so organised have been communicated to the suspect.
There can be no argument with the requirement that the refusal is informed in certain respects; s 233(3) of the Crimes Act prohibits the holding of an identification parade unless the suspect has been informed of several matters relating to the identification parade, including that the suspect may refuse to take part, that if he or she does refuse evidence of the refusal and of other identification evidence may be given in proceedings relating to the offence, that the suspect may take advice from a lawyer or other person about whether to take part in the identification parade and that such a person may be present during the holding of the identification parade.
Section 233(3) makes it clear that a suspect must be informed of his or her right to seek legal advice. There is no basis in the words of the provision for the assertion that such legal advice must have been obtained before a valid refusal can be made.
Counsel relied on the AAT case of Raymond Kevin Oakes v Comcare [1995] AATA 311 (Oakes) as authority for the proposition that an accused cannot “refuse” without being aware of her rights. Mr Oakes had been taking part in a rehabilitation program relating to a work-related injury. At some point the program was extended, he failed to continue to take part in it, and his Comcare benefits were suspended. The AAT found that Mr Oakes did not know that the program had been extended, and did not know that the extended program was relevant to his continuing Comcare entitlements, and held that his failure to take part in the extended program was not a refusal to undertake a rehabilitation program for the purposes of the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (Cth), saying that a “refusal”:
(a)required an exercise of the person’s will or discretion; and
(b)could not happen where a person did not know about the existence of the program, or that it was a relevant program for Comcare purposes.
This decision might have been relevant if the applicant alleged that she had not been properly invited to take part in the identification parade or had not been informed of her rights. The decision has no relevance that I can see where the position is that the applicant was invited to seek legal advice in relation to the identification parade, but explicitly declined to seek legal advice before giving a final answer and explicitly gave an answer that was a refusal to participate.
In the absence of any legislative basis or other authority, I reject counsel’s proposition that a refusal to take part in an identification parade can only be made effectively after a suspect has received legal advice. Counsel’s reliance on the contra proferentum rule seems to me to be both odd and ineffective in relation to legislation relating to criminal investigations rather than contracts and other agreements.
Nor was the applicant’s refusal a conditional refusal of the kind hypothesised in Odgers S, Uniform Evidence Law (Thomson Reuters: 9th ed, 2010) (Odgers) at [1.3.9550], that is a refusal to take part unless specified reasonable conditions are met, which could be analysed as a conditional agreement to take part. The only qualification she put on her refusal was that when she spoke to her lawyer, “if he does say I should do one, obviously, you know I’ll be...”. That is, she was reserving her right to change her mind later (as the applicant put it to DS Burgess, to refuse her refusal) and agree on the basis of advice she might receive; she was not agreeing subject to police agreement to meet specified reasonable conditions in relation to the proposed identification parade.
As to counsel’s submission that a refusal can only be effective if it relates to a specific identification parade all the details of which have been advised to the suspect, I note that s 233(6) sets out the requirements for the actual conduct of the identification parade. It deals with matters such as the number of persons to be involved (s 233(6)(a)), the requirement that the participants other than the suspect must resemble the suspect in age, height and general appearance (s 233(6)(b)), the suspect’s right to determine where he or she stands (s 233 (6)(i)), what the witnesses may do (s 233(6)(f), (h) and (j)), and what they must be told (s 233(6)(k)).
There is no suggestion in s 233 or elsewhere that a valid refusal can only be made after the identification parade has been organised as required by s 233 and is ready to take place. It may well be that a suspect could refuse to take part in an identification parade even at that last minute, but I can see no basis for finding that this is the only point at which an effective refusal can be made. If there is a method of interpreting s 233, 235 or other relevant provisions to this effect, or authority supporting counsel’s submission, he did not see fit to share it with me. Accordingly I reject counsel’s propositions that a particular identification parade must be organised, and that all the details of that parade must be communicated to the suspect, before a suspect can “refuse” to take part in the parade for the purposes of the Evidence Act and Crimes Act provisions. This does not, however, imply a rejection of the possibility raised in Odgers that a suspect who refuses to take part in an identification parade unless specified conditions about the parade are met might at that point not have “refused” for the purposes of the Evidence Act provisions.
Did the photo board process breach the rules (s 235(2))?
This brings me to what seems to be the only vaguely substantial aspect of the submissions made on behalf of the applicant, namely that the photo board process conducted in this case breached one or more of the applicable rules set out in s 235(2).
The s 235(2) rules that counsel for the applicant seems to be relying on are as follows:
(b)each photograph or picture of a person who is not the suspect shall be of a person who—
(i)resembles the suspect in age and general appearance; and
(ii)does not have features visible in the photograph or picture that are markedly different from those of the suspect as described by the witness before viewing the photographs or pictures;
(c)the police officer shall not, in [conducting the photo board process], act unfairly towards the suspect or suggest to the witness that a particular photograph or picture is the photograph or picture of the suspect or of a person who is being sought by the police in respect of an offence;
(d)if practicable, the photograph or picture of the suspect shall have been taken or made after he or she was arrested or was considered as a suspect;
The specific arguments that the photo board process breached any or all of those rules are not made clearly.
Rules about the other photographs (s 235(2)(b))
Counsel has made the following written submissions:
the photograph of the accused shown to the witnesses had visible features which are markedly different to the features of the other persons depicted in the other photographs ...
None of the photographs included in the video photo board were of persons who “resembled” the accused.
Counsel has not identified any of the differences he can apparently see between the appearance of the applicant and the appearance of the other women shown in the photo board.
As well, counsel has mis-read the legislation. Section 235(2)(b)(ii) relates to the other photographs used in the photo board, not to the photograph of the suspect; what is proscribed is features in those other photographs that are markedly different from those of the suspect originally described by the witness.
The complainants’ descriptions are set out at [14] and [16] above. They are brief and list very few “features” that could be shown in a photograph of a person’s face; those mentioned are hair colour and style, “a little bit overweight”, “quite heavy build”, the use of black eyeliner and, by the female complainant, the possibility of lower lip piercings.
As noted, I have examined the photographs. All the women have dark, fairly straight hair. There are no fringes. Their hair is arranged in various different ways – there are centre parts (some messier than others) and side parts, and in several cases the hair is simply pulled back from the face rather than falling to each side of a part. None of the women is slim, but nor is any extremely overweight. A couple of them have fairly well-defined chin lines, others have the beginnings of double chins. All have dark eyebrows, some fairly obviously plucked and others in an apparently more natural state. Most of the women have dark brown eyes, but several have lighter coloured eyes – perhaps light brown or grey; there are none with identifiably blue eyes. Most of the women have fairly clear skin, but there are a couple with noticeable blemishes. One or both ears are visible in some of the photographs, and several of the women are wearing earrings. All the women looked to be in their 20s or early 30s.
I am satisfied, first, that all the women shown in the photo board “resemble [the applicant] in age and general appearance” (s 235(2)(b)(i)).
As to whether any of the other women have markedly different features from those of the suspect as described by the complainants, I note that this phrase could describe various kinds of “marked differences” in various kinds of features. First, it is clearly intended to apply where a photograph included in the photo board shows a different form of a feature specified by a witness. For instance, if a witness describes an offender with straight black hair and one of the other photographs is of a person with curly blonde hair, the photo board process would appear to be in breach of s 235(2)(b)(ii). I am inclined to the view that the provision would also apply in the case of a distinctive facial feature described by a witness, such as a prominent birthmark or a goatee beard, that was absent from the other photographs. I also consider, however, that the provision is not intended to apply where the other photographs have a standard facial feature, such as eyes or a nose, that has not been mentioned by the witness.
I also consider that the reference in s 235(2)(b)(ii) to a “feature” probably does not include aspects of appearance that are essentially superficial, such as make-up or jewellery, although I do not exclude the possibility that such an element of a description could in an exceptional case be covered by the rule.
In this case, the very limited descriptions of facial features given by the complainants means that there is limited scope for the features in the other photographs to be “markedly different”. All the women have brown hair, although there are no prominent blonde streaks. As mentioned, in no case is the apparent build of the woman photographed “markedly different” from the “little bit overweight” and the “quite heavy build” mentioned by the complainants. I am satisfied that in this case the absence from many of the other photographs of a removable aspect of appearance, namely eyeliner, does not mean that the photographs concerned are photographs of women with “markedly different” features from the features described by the complainants on the ground that they mentioned that the offender was wearing eyeliner.
For similar reasons I am also satisfied that the absence, from the photographs of the other women, of body piercings of the kind mentioned as a possibility by the female complainant did not mean that the other photographs in the photo board viewed by the female complainant had visible features that were “markedly different” from those described by the female complainant before viewing the photo board.
I am accordingly satisfied that none of the other photographs used in the photo board has visible features “that are markedly different from those of the suspect as described by the witness before viewing the photographs”.
There has been no breach of s 235(2)(b).
Rules about the suspect’s photograph (s 235(2)(c) and (d))
Counsel’s argument seems to be that, because of the alterations made to the original photograph by the NSW Unit:
(a)showing the altered photograph to the complainants involved acting unfairly to the applicant or suggesting to the complainants that the photograph purporting to be of the applicant was a photograph of the suspect (in breach of s 235(2)(c)); or
(b)the photograph purportedly of the applicant that was included in the photo board shown to the two complainants was not, for the purposes of the relevant legislation, a photograph of the applicant taken after she was arrested or considered a suspect (in breach of s 235(2)(d)).
The submissions made about the changes to the photographs are as follows (I have quoted them at such length because I have not found them easy to understand and therefore have felt unable to summarise them fairly):
the composition of the photoboard constitutes unfair conduct within s. 235(2)(c).
the photograph of the accused used in the photoboard was not as [sic] photograph taken after she was arrested and/or considered a suspect in breach of s. 235(2)(d)
...
This photograph is not a photogprah [sic] of the accused at the time of her arrest and is not a photograph of the accused at the relevant time – the time of the offence. The relevant photograph of the accused was the photograph taken at the time of her arrest ...
The alteration has resulted in the use of a photograph of the accused which matches the description of the witness in that that description does not refer to a stud and is thus an alteration capable of influencing the witness in identifying the accused as the offender.
The alteration ... constitutes unfairness within section 235 of the Crimes Act 1900 ...
Further – the photograph of the accused used in the video-photoboard has been enhanced and emphasizes the facial features described by [the male complainant] in his statement. This photograph stands out when the photographs are examined and has a subliminal effect upon the viewer. The differences of emphasis are, it is accepted, subtle, but they are there and there [sic] are all the more powerful in their effect because of their subtleness. This enhancement of the photograph – of the subtle changes to the other photographs which has [sic] resulted in them being less distinctive – constitutes and alteration to the photograph which again contravenes the provisions ... of section 235 of the Crimes Act and constitutes unfairness and conduct influencing the witness to identify the accused as the offender.
... what the investigating officials have done is constructed a photoboard using photographs of persons without studs and altered the appearance of the accused from what her appearance was at the relevant time in order to match the verbal descriptions given by the witness to the police prior to the witnesses viewing the photoboard. That is unfair and improper conduct designed to force – or ‘push’ – the identification of the accused as the offender. If the visual identification had been conducted fairly, her photograph would have reflected her physical appearance at the time of the offence, which would have then showed her wearing one stud in her upper lip and, of course, it must have been clear to the investigating officers that had such a photo been shown to the [male complainant] then he must have rejected the accused as the offender because his description did not include any reference to the stud which was clearly obvious when you looked at her face. This is particularly important as the witness identified the offender as having certain distinctive facial features which do NOT include a stud on her upper lip.
Expressing it another way – the visual identification of the accused as the offender was an identification of a person who was not wearing a stud in her upper lip when at the time of the alleged offence the accused was wearing such a stud. Thus the identification is not of the offender and the visual identification evidence cannot have probative value.
To have probative value the photo of the accused which is shown to the witnesses who are being asked to identify the accused as the offender must be a photograph of her at the time of the alleged offence – once it is not that but a photograph of her which shows her appearance at a different time, or an appearance that has been altered in some way, then it cannot provide a probative basis for an identification of her as the offender. To change her physical appearance from what it was at the time of the alleged offence so that it matches the verbal descriptions of witnesses constitutes unfairness and intentional conduct which has the direct effect of influence [sic] the identification of her as the offender. Such conduct constitutes an impropriety within section 138 and unfairness within section 235 of the Cries Act [sic]. It also enders [sic] the evidence unfairly prejudicial within section 137 of the Evidence Act 1995.
An equivalent submission is made in respect of the evidence of the female complainant, taking account of the fact that her description raised the possibility of piercings under the offender’s lower lip. The relevantly different aspects of the submissions are as follows:
The alteration has resulted in the use of a photograph of the accused which does not match the description of the witness in that that description does not refer to a stud on the upper lip and is thus an alteration capable of influencing the witness in identifying the accused as the offender. ...
Further – the photograph of the accused used in the video-photoboard has been enhanced and emphasizes the facial features described by [the female complainant] in her statement. This photograph stands out when the photographs are examined and has a subliminal effect upon the viewer. The differences of emphasis are, it is accepted, subtle, but they are there and there [sic] are all the more powerful in their effect because of their subtleness. This enhancement of the photograph – of the subtle changes to the other photographs which has [sic] resulted in them being less distinctive – constitutes an alteration to the photograph which again contravenes the provisions of the Evidence Act and of section 235 of the Crimes Act and constitutes unfairness and conduct influencing the witness to identify the accused as the offender.
In final written submissions counsel said:
The prosecution acknowledges that the photograph of the accused shown to the witnesses was NOT a photograph of the accused at the time she was taken into custody. Rather, it was a photograph of the accused that had been altered by the police forensics officer to remove a facial stud.
Each of the relevant statutory provisions – section 235, section 114 and section 115 – are [sic] predicated upon the basis that the photograph of the accused shown to witnesses IS a photograph of the accused. That did not occur and, accordingly, the statutory provisions have not been complied with and the visual identification evidence is not admissible.
The basis upon which these statutory provisions is grounded is that a photograph of the accused is identified by the witness, to whom it is shown, as being a photograph of a person resembling the alleged perpetuator [sic] of the offence in issue. If the photograph is NOT a photograph of the accused at the time of her arrest, but is a photograph with altered facial features, then it is NOT a photograph of the accused and the visual identification evidence can have no probative value ...
Putting it simply, the photograph that was shown in this case to the witnesses was not a photograph of the accused, but a composite photograph with a significant facial feature altered.
That this works unfairness – and the motive behind the forensic officer’s conduct for altering the photograph is, with respect, irrelevant, the issue being whether there has been ‘unfairness’ – is demonstrated in this case by an examination of the witness’ [sic] descriptions of the alleged offender. One does not identify a facial stud, although he identifies facial features, while the other, who also identifies facial features, ‘believed’ that the alleged perpetuator [sic] might have had one, or two, lip studs. Coincidentally the photograph of the accused taken at the time she is arrested is altered forensically to delete her facial stud and is then shown to the witnesses.
The photograph shown to the witnesses is NOT a photograph of the accused, but a composite photograph that has been altered. The manner of its alteration happens to reflect the description given by one witness and is consistent with the description given by the second, but as it is not a photograph of the accused at the time of her arrest, it cannot follow that the visual identification evidence has probative value.
Further, the alteration of the photograph means that section 235(2)(b) has not been complied with and that the visual identification evidence is, accordingly, inadmissible. ...
Further, the alteration of the photograph and the subsequent inclusion of it in the video photo board and the inclusion of other photographs that either matched the witness description of the alleged offender, or were consistent with that description, does constitute an “impropriety” within section 138 of the Evidence Act 1995: Parker v Comptroller-General of Customs [2009] HCA 7, [29] per French CJ ...
The visual identification evidence should be excluded. The statutory provisions regulating the admissibility of such evidence have not been complied with and the photograph purportedly of the accused used in the video photo board is not a photograph of her, but has been altered by the investigating police/forensic officers. That alteration removed a significant facial feature, an upper lip stud, from the photograph taken of the accused at the time of her arrest and thus altered her photograph to one depicting her in a manner consistent with the descriptions of the witnesses. Whether this alteration was accidental, as opposed to deliberate, is not to the point. The alteration works ‘unfairness’ and negates the probative value of the visual identification evidence.
Alteration of the photograph—was it still a photograph of the applicant (s 235(2)(d))?
It is convenient to consider first the question whether the use of the altered photograph breached the rule in s 235(2)(d) because of those alterations. The changes made to the original photograph (see [23] above) consisted of:
(a)filtering it “to bring the brightness and pixelation of the image into line with the other 11 photos”; and
(b)removing the stud from the image.
First I note that, contrary to the submission of counsel for the applicant, the prosecution concession that the photograph used had been altered is just that – it is not an acknowledgement that the photograph was not a photograph of the applicant when she was taken into custody.
The use of digital photography, and the resulting capacity to manipulate photographs in an almost unlimited number of ways, no doubt raise some issues relevant to the use of photo boards and equivalent techniques, and it may be that at some stage legislative attention will need to be directed to those possibilities.
However, for present purposes I am satisfied that the image originally recorded by the digital camera (in this case the one taken by Constable Smith on the night of the applicant’s arrest) did not cease to be a photograph of the applicant taken shortly after her arrest by reason of:
(a)being loaded onto the AFP computer database PROMIS;
(b)being converted from PROMIS into “jpg” format and given a new title;
(c)being emailed to the NSW Unit; or
(d)being copied into a PowerPoint format.
More questions are raised by the suggestion that the photograph ceased to be a photograph of the applicant taken at the specified time:
(a)by reason of having the colour levels in the image changed; or
(b)by reason of having its pixelation or file size reduced or increased.
To the best of my knowledge (no evidence was offered on the topic), it cannot be said that a digital photograph has a specified set of colour levels when taken, but even if it does, I am satisfied that a photograph taken “in colour” does not cease to be that photograph because it is displayed on a monitor or other device, or printed, in black and white, sepia, faded colours, intensified colours or colours in which the red/blue/yellow levels have been varied. In saying this I do not rule out the possibility that changes in colour levels, or changes to the colour of a specific aspect of the photograph, might affect the fairness of a photo board process, or the probative value of a photo board identification, in particular circumstances.
Similarly a change in pixelation or file size might affect the definition and clarity of a photograph, but it does not turn it into a different photograph; again, the use, in a photo board, of a photograph of a suspect with a distinctly different pixelation or file size from the other photographs used in that photo board might raise questions of fairness or probative value, but would not render the photo board non-compliant on the ground that the photograph of the suspect is not the photograph taken at the required time, or is not a photograph of the suspect at all.
I am satisfied that the image of the applicant did not cease to be a photograph of the applicant taken on the night of her arrest by reason of changes to its colour levels, pixelation or file size.
I note in passing the description given by the Western Australian Court of Appeal in Winmar v The State of Western Australia (2007) 35 WAR 159 (Winmar) at [32] and [33] of the process of compiling what in Western Australia is called a “digiboard”, as follows:
32 If photographic identification is considered possible, the investigating officer will advise the Forensic Imaging Unit that a digiboard is required, will nominate the suspect or person of interest and, if there is more than one photograph of that person in existence, nominate which is to be used in the digiboard. It appears that the Forensic Imaging Unit is a specialist unit, independent of the investigation. The Forensic Imaging Unit selects images of similar age, appearance, race, etc, to the suspect. Background colours and lighting conditions are matched. The photographs can be enhanced or altered in order to ensure the greatest possible similarity between the suspect and the fillers, for example, by lightening or darkening of hair or complexion.
33 It was not clear from the materials provided to us what course is followed where the suspect differs significantly in appearance from the description given by the witness; that is, whether the “fillers” were matched to the description given, or to the appearance of the suspect. The course taken in the case of Mr Hussaini suggests that a mixture of images is used.
It appears from [33] of Winmar that in 2007 the process of using a “digiboard” was not subject to legislative requirements in the nature of s 235 of the Crimes Act, and the Court of Appeal’s description of how the process was conducted in Western Australia cannot provide any direct answers to questions about the interpretation of legislation that applies in the ACT. However, the acceptance that “[b]ackground colours and lighting conditions are matched” and that photographs of the “fillers” (the subjects other than the suspect) may be “enhanced or altered to ensure the greatest possible similarity between the suspect and the fillers, for example, by lightening or darkening of hair or complexion”, is generally consistent with my view that changes in colour levels, pixelation or file size do not of themselves change the essential character of a photograph (although of course altering the photograph of a suspect may raise different questions from altering the photographs of “fillers”).
The other identifiable “alteration” of the image to which counsel took exception was the alteration to remove the stud shown above the applicant’s lip in the original photograph. This is a more difficult issue to deal with in principle, because there is no doubt that some alterations of photographs would be sufficient to change the essential character of the photograph. This is clearly not a suitable case in which to engage in philosophical discussion about the essential nature of a photograph but I am satisfied, in the absence of any coherent argument to the contrary, that the alteration in question in this case, being to remove the image of a very small facial stud, without any need to construct a new image for the edited portion of the picture (in contrast to, say, editing out a hat which might require re-construction of an image of the person’s forehead and hair), does not deprive the photograph of the applicant taken after her arrest of its original character.
Accordingly, I reject the submission that the altered photograph was not a photograph of the applicant taken after her arrest.
Alteration of the photograph—was there unfairness (s 235(2)(c))?
There are several submissions made by counsel for the applicant that I can only assume are intended to be relevant to unfairness; at any rate, that seems to be the most appropriate context in which to address them.
Applicant’s appearance at the time of the offence
First, despite counsel’s repeated assertions to the effect that “at the time of the alleged offence the accused was wearing such a stud”, there is no basis in evidence or argument for assuming that the applicant was wearing the relevant stud at the time the alleged offence was committed. There is no evidence before me to the effect that facial studs are any more “permanent” than other jewellery worn in body piercings, such as earrings, which can be inserted or removed in a matter of seconds and are often treated as part of one’s outfit for the day. Counsel’s assertion is equivalent to saying that a person who is arrested wearing a hat must be presumed also to have been wearing the same hat at an earlier time when an offence was committed, and it must be rejected.
Effect of minor change in person’s appearance
Next, I think counsel submits that editing out the stud so that the photograph did not show the applicant exactly as she was at her arrest was unfair, although I am not sure about the nature of the unfairness alleged.
Unless a suspect is arrested at the scene of, and immediately after, the offence, there is always scope for a suspect’s appearance to be different in minor respects from what it might have been at the time of the offence. There is nothing that I can find in relevant legislation that addresses that issue directly. However, s 115 of the Evidence Act does advert to the issue of a significant change in the appearance of a person between the time of the offence and when he or she was taken into custody. Under s 115(4), such a change removes a requirement for police to use a current photograph of a person in custody to avoid the inadmissibility of picture identification evidence under s 115(3); under s 115(5) it also provides, in effect, a justification for not conducting an identification parade, a failure which might otherwise lead to the inadmissibility of picture identification evidence.
That is, a significant change to a person’s appearance between when the offence was committed and when the person is taken into custody does not exclude the use of any kind of identification processes – in fact it reduces the specific protections provided to suspects by the legislation.
Having regard to the legislative approach to a significant change in a person’s appearance, I am satisfied that there is no basis for finding that a relatively minor change, or a change that can be easily addressed, in effect protects a person from being subject to identification processes (by which I mean being invited to take part in an identification parade or having a photograph included in a photo board). In the absence of any express legislative provision to the contrary, it seems that insignificant changes in a person’s appearance do not have any specific impact on the scope for conducting identification processes.
There are various ways in which insignificant changes in appearance may be dealt with. One option is simply to ignore them. Alternatively police may invite (or possibly in some cases require), the suspect to remove items such as hats, jewellery or make-up. I cannot see that manipulation of photographs (whether the photograph of the suspect or of some or all of the other photographs) is necessarily excluded as an option, noting that adding to photographs might raise more difficult questions but that in all cases the fairness of the process will be the ultimate question.
This is not the occasion for trying to generalise about the kinds of circumstances in which a photograph may be altered in the interests of fairness. However, I am satisfied that a small facial stud is not a “significant facial feature” (counsel’s words) or an item that could lead to a significant change in a person’s appearance (ss 115(4)(a) and (5)(b) of the Evidence Act) or an item that would make a person’s features “markedly different” (s 235(2)(b)(ii) of the Crimes Act). On that basis I cannot see that editing the stud out of the applicant’s photograph is in any sense unfair.
At the same time, the insignificance of the stud means that I do not consider that it would have been unfair to leave the stud in the photograph either, whether or not some or all of the other photographs were of people with similar studs.
Enhancements, differences of emphasis and subliminal effects
Counsel asserts that the photograph of the applicant used in the photo board “has been enhanced and emphasises the facial features described by [the male complainant] in his statement”. There is no attempt to establish this claim by identifying the features said to have been enhanced or the nature of the enhancements. The features mentioned by the male complainant were “quite heavy build ... brown hair to her mid back area ... several blonde streaks in the front of her hair ... black eye-liner”. Whether any of these is really a “facial feature” need not be pursued, because there was no evidence or argument that any of those features had been enhanced beyond what was shown in the original photograph.
I can give no meaning to counsel’s claim that the photograph of the applicant “stands out when the photographs are examined and has subliminal effect upon the viewer”. This may not be surprising in the light of counsel’s concession that the “differences of emphasis are ... subtle, but they are there and there [sic] are all the more powerful in their effect because of their subtleness”. Whatever this means, it could usefully have been replaced by an attempt to describe the alleged subtle enhancements and the emphasis on specified facial features. The suggestion that “This enhancement of the photograph – of the subtle changes to the other photographs which has [sic] resulted in them being less distinctive – constitutes an alteration to the [original] photograph” is if possible even less coherent.
There is one other matter that needs to be dealt with. In submissions provided by the prosecutor in November 2009, he said that the NSW Unit “eliminated features (namely the brightness/colour and presence of the ‘stud’) that would have made the original photograph stand out from the photographs provided by the NSW police”, and conceded that “If the original (unaltered) photograph had been used, there would have been little doubt that the photo-board would have been ‘unfair’ for the purposes of s 235(2)(c)”.
Given the uncertainty about which photograph was in fact used, it seems to me that the significance of the prosecutor’s concession can only be addressed by reference to the photographs themselves. As I have noted at [47] above, the colour intensity of the applicant’s photograph in the photo board when viewed on screen is higher than that of any of the other photographs, but there is not enough consistency in the colour intensity of all the other photographs, nor a large enough gap between the intensity of the applicant’s photograph and the intensity of the photograph that is closest to the applicant’s photograph in intensity, to say that the differences in colour intensity mean that the conduct of the photo board process involved acting unfairly towards the applicant or suggesting to the complainants that the photograph of the applicant is the photograph of the suspect.
Counsel has not made out any of his submissions about unfairness in the conduct of the photo board processes.
Conclusions about s 235(2)(c) and (d)
I am satisfied that neither s 235(2)(c) nor 235(2)(d) was breached in the photo board process. I note in particular that my conclusion that the facial stud was not a significant facial feature for any relevant purpose (at [111] above) means that it does not in fact matter whether the photograph actually used in the photo board processes did or did not include the stud.
Limits on use of “composite picture” while suspect in custody (s 235(4))
The grounds of the application also included the claim that the use of the photo board was in breach of s 235(4) of the Crimes Act. That section prohibits a police officer showing a witness a “composite picture” or similar while a suspect is in custody “for the purpose of assisting the witness to describe the features of the suspect”.
If the applicant was not in custody at the relevant time, this provision is irrelevant.
Further consideration is required to deal with the possibility that the applicant might have been in custody at the relevant time.
The argument in relation to s 235(4) has not been developed, even under the relevant heading in the original Outline of Submissions. In particular, counsel has not argued that the picture of the applicant shown to the complainants was a composite picture. He has submitted at length that the photograph of the applicant was not in fact a compliant photograph of her at the relevant time, and I have rejected those submissions at [103] above, but he has said nothing about composite pictures. I suspect that the phrase “composite picture” refers to a picture compiled from a witness’s description of individual facial features, sometimes referred to as an “identikit” or “photofit” picture. Even if I am wrong about the meaning of “composite picture”, I am satisfied that none of the pictures relevant to this application was shown during the photo board processes “for the purpose of assisting [the complainants] to describe the features of the suspect”. In the absence of any contrary evidence, I conclude that s 235(4) is irrelevant in this case.
Exclusion under Evidence Act s 138
Since the applicant has not satisfied the onus of establishing any impropriety or contravention of law in the conduct of the photo board processes (Robinson v Woolworths Ltd (2005) 64 NSWLR 612 at [33]), there is nothing for s 138 of the Evidence Act to operate on, and no basis on which the evidence of identifications made through the photo board process is prima facie inadmissible, and it is therefore unnecessary for me to consider whether the photo board evidence ought nevertheless be admitted under s 138. This is just as well, since counsel for the applicant has made no submissions addressing the matters to be considered under s 138(3) in deciding whether evidence should be admitted despite a finding of impropriety or contravention of law.
I note in passing the implication in counsel’s submissions quoted at [91] above that Parker v Comptroller-General of Customs [2009] HCA 7 at [29] establishes:
that the alteration of the photograph and the subsequent inclusion of it in the video photo board and the inclusion of other photographs that either matched the witness description of the alleged offender, or were consistent with that description, does constitute an ‘impropriety’ within section 138 of the Evidence Act 1995.
That submission is misleading – the paragraph quoted from French CJ’s judgment merely notes that “impropriety” and “contravention” as used in s 138 were not explained by the relevant Law Reform Commission report, and then refers to ordinary meanings for those words.
Exclusion under Evidence Act s 137
Presumably as the starting point for an argument that the photo board evidence should be inadmissible under s 137, counsel repeatedly submitted that the photo board evidence was of little or no probative value.
Effect of complainant’s failure to mention the stud
The description of the offender given by the male complainant did not refer to a stud, either as having been observed or as not having been observed, and counsel submitted that “the visual identification of the accused ... was an identification of a person who was not wearing a stud in her upper lip” [quoted at [89] above].
Counsel asserted that if the male complainant had been shown a photograph of the applicant with the stud above her lip:
then he must have rejected the accused as the offender because his description did not include any reference to the stud which was clearly obvious when you looked at her face ... This is particularly important as the witness identified the offender as having certain distinctive facial features which do NOT include a stud on her upper lip.
There is no suggestion that the male complainant specified that the offender did not have a facial stud. Counsel’s argument seems to amount to saying that a photograph shown to a witness must show only those features mentioned in the witness’s prior description. If this argument is to be taken seriously, police should also have edited out the applicant’s mouth, nose, and ears, since none of them was mentioned; while the reference to black eyeliner implies that the offender had eyes, even that feature was not mentioned explicitly, so counsel might also have argued that the eyes should have been edited out. The suggestion that a suspect must be eliminated because a minor or commonplace aspect of his or her appearance has not been mentioned by a witness is clearly unsustainable.
Counsel’s argument that the photograph was changed to “so that it matches the verbal descriptions of witnesses” might have been worthy of consideration if the police had added a lower lip stud to reflect the female complainant’s statement that she thought the female offender might have had one or possibly two piercings below her lower lip; I have already indicated my reservations about the scope for police to add features to a photograph. However, the police made no such alteration.
Need for photograph of offender at time of offence
The suggestion made by counsel for the applicant that “[t]o have probative value the photo of the accused which is shown to the witnesses ... must be a photograph of her at the time of the alleged offence” is one of his more peculiar submissions. The existence of such a photograph, that is, a photograph taken at the time of the alleged offence, could have considerable probative value, since it might well, depending on the circumstances in which it was taken, either place the suspect clearly at the scene of the offence or equally clearly place her somewhere else. However the existence of such a photograph would not seem to be relevant to the probative value of a subsequent identification by a witness, and the fact that it would by definition have been taken before the suspect was arrested might exclude its use anyway in certain circumstances.
Probative value
The risks of reliance on identification evidence are well recognised; however I cannot see that counsel has established that the photo board evidence in this case has lower probative value than such evidence would have in ordinary circumstances.
Prejudicial value
Nor has counsel offered either evidence or argument about the prejudicial value of the photo board evidence. If significant unfair prejudice had been shown, even photo board evidence of ordinary probative value might have to be excluded, but counsel has not pointed to any such prejudice.
The only prejudicial value of the evidence that I can identify is that it strengthens the prosecution case; this is not as such “unfair prejudice” within the terms of s 137 of the Evidence Act. Counsel has not suggested that there are any inferences that might be drawn from the photo board evidence that should not properly be before the jury, that the photo board evidence might be given more weight than it deserves, or that the evidence might “inflame the jury or divert the jurors from their task” (Festa v the Queen (2001) 208 CLR 593, McHugh J at [51], and see Gleeson CJ at [22]; Papakosmas v The Queen (1999) 196 CLR 297, at [91] and [92]).
Conclusions about s 137
There is accordingly no basis for me to find that s 137 of the Evidence Act requires me to refuse to admit the photo board evidence.
Summary of conclusions
In summary:
(a) s 114 of the Evidence Act does not apply to the photo board evidence in question in this case;
(b) s 115 of the Evidence Act does not render the photo board evidence in question inadmissible;
(c) no breach of the Crimes Act requirements for the use of photo boards has been established;
(d) no impropriety or contravention of Australian law in the obtaining of the photo board evidence has been established, so s 138 of the Evidence Act does not apply; and
(e) the photo board evidence has not been shown to be of any lower probative value than identification evidence obtained through such a process would be in the normal course of events, and no unfair prejudice has been shown to arise from the use of the photo board evidence in this case, so s 137 of the Evidence Act does not apply.
Order
Accordingly, the application to exclude identification evidence, in particular the photo board evidence, from the applicant’s forthcoming trial is refused.
I certify that the preceding one hundred and thirty-seven (137) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate:
Date: 9 May 2011
Counsel for the applicant: Mr R Thomas
Solicitor for the applicant: Legal Aid Office (ACT)
Counsel for the respondent: Mr M Thomas
Solicitor for the respondent: ACT Director of Public Prosecutions
Dates of hearing: 29 October, 18 December 2008
25 March, 22 April, 4 and 17 November 2009
11 June 2010, 3 May 2011
Date of judgment: 9 May 2011
Appendix – Legislation
Evidence Act 1995 (Cth)
114Exclusion of visual identification evidence
(1)In this section:
visual identification evidence means identification evidence relating to an identification based wholly or partly on what a person saw but does not include picture identification evidence.
(2)Visual identification evidence adduced 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 such a parade; or
(c)the defendant refused to take part in such a parade;
and the identification was made without the person who made it having been intentionally influenced to identify the defendant.
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115Exclusion of evidence of identification by pictures
(1)In this section:
picture identification evidence means identification evidence relating to an identification made wholly or partly by the person who made the identification examining pictures kept for the use of police officers.
(2)Picture identification evidence adduced by the prosecutor is not admissible if the pictures examined suggest that they are pictures of persons in police custody.
(3)Subject to subsection (4), picture identification evidence adduced by the prosecutor is not admissible if:
(a)when the pictures were examined, the defendant was in the custody of a police officer of the police force investigating the commission of the offence with which the defendant has been charged; and
(b)the picture of the defendant that was examined was made before the defendant was taken into that police custody.
(4)Subsection (3) does not apply if:
(a)the defendant’s appearance had changed significantly between the time when the offence was committed and the time when the defendant was taken into that custody; or
(b)it was not reasonably practicable to make a picture of the defendant after the defendant was taken into that custody.
(5)Picture identification evidence adduced by the prosecutor is not admissible if, when the pictures were examined, the defendant was in the custody of a police officer of the police force investigating the commission of the offence with which the defendant has been charged, unless:
(a)the defendant refused to take part in an identification parade; or
(b)the defendant’s appearance had changed significantly between the time when the offence was committed and the time when the defendant was taken into that custody; or
(c)it would not have been reasonable to have held an identification parade that included the defendant.
(6)Subsections 114(3), (4), (5) and (6) apply in determining, for the purposes of paragraph (5)(c) of this section, whether it would have been reasonable to have held an identification parade.
(7)If picture identification evidence adduced by the prosecutor is admitted into evidence, the judge must, on the request of the defendant:
(a)if the picture of the defendant was made after the defendant was taken into that custody—inform the jury that the picture was made after the defendant was taken into that custody; or
(b)otherwise—warn the jury that they must not assume that the defendant has a criminal record or has previously been charged with an offence.
Note:Sections 116 and 165 also deal with warnings about identification evidence.
(8)This section does not render inadmissible picture identification evidence adduced by the prosecutor that contradicts or qualifies picture identification evidence adduced by the defendant.
(9)This section applies in addition to section 114.
(10)In this section:
(a)a reference to a picture includes a reference to a photograph; and
(b)a reference to making a picture includes a reference to taking a photograph.
137Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
138Discretion to exclude improperly or illegally obtained evidence
(1)Evidence that was obtained:
(a)improperly or in contravention of an Australian law; or
(b)in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
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Crimes Act 1900 (ACT)
Identification parades—general
(1)This section applies to identification parades held in relation to offences.
(2)Subject to subsection (3) and to section 234, an identification parade—
(a)may be held if the suspect agrees; or
(b)shall be held if—
(i)the suspect has requested that an identification parade be held; and
(ii)it is reasonable in the circumstances to do so.
(3)An identification parade shall not be held unless the suspect has been informed that—
(a)he or she is entitled to refuse to take part in the parade; and
(b)if he or she refuses to take part in the parade without reasonable excuse, evidence of that refusal and of any identification of the suspect by a witness as a result of having seen a photograph or of having seen the suspect otherwise than during an identification parade may be given in any subsequent proceedings in relation to an offence; and
(c)in addition to any requirement under section 234, a legal representative or other person of the suspect’s choice may be present while the person is deciding whether to take part in the parade, and during the holding of the parade, if arrangements for that person to be present can be made within a reasonable time.
(4)The giving of the information referred to in subsection (3) shall be recorded by a video recording or an audio recording.
(5)An identification parade shall be arranged and conducted in a way that will not unfairly prejudice the suspect.
(6)Without limiting the intent of subsection (5), an identification parade shall be arranged and conducted in accordance with the following rules:
(a)the parade shall consist of at least 9 persons;
(b)each of the persons who is not the suspect shall—
(i)resemble the suspect in age, height and general appearance; and
(ii)not have features that will be visible during the parade that are markedly different from those of the suspect as described by the witness before viewing the parade;
(c)unless it is impracticable for another police officer to arrange or conduct the parade, no police officer who has taken part in the investigation relating to the offence may take part in the arrangements for, or the conduct of, the parade;
(d)no person in the parade is to be dressed in a way that would obviously distinguish him or her from the other participants;
(e)if it is practicable to do so, numbers should be placed next to each participant to allow the witness to make an identification by indicating the number of the person identified;
(f)the parade may take place so that the witness can view the parade without being seen if the witness requests that it take place in that way and—
(i)a legal representative or other person of the suspect’s choice is present with the witness; or
(ii)the parade is recorded by a video recording;
(g)nothing is to be done that suggests or is likely to suggest to a witness which member of the parade is the suspect;
(h)if the witness so requests—members of the parade may be required to speak, move or adopt a specified posture but, if this happens, the witness shall be reminded that the members of the parade have been chosen on the basis of physical appearance only;
(i)the suspect may select where he or she wishes to stand in the parade;
(j)if more than 1 witness is to view the parade—
(i)each witness shall view the parade alone; and
(ii)the witnesses are not to communicate with each other at a time after arrangements for the parade have commenced and before each of them has viewed the parade; and
(iii)the suspect may change places in the parade after each viewing;
(k)each witness shall be told that—
(i)the suspect may not be in the parade; and
(ii)if he or she is unable to identify the suspect with reasonable certainty he or she shall say so;
(l)the parade shall be recorded by a video recording if it is practicable to do so and, if that is done, a copy of the video recording shall be made available to the suspect or his or her legal representative as soon as it is practicable to do so;
(m)if the parade is not recorded by a video recording—
(i)the parade shall be photographed in colour; and
(ii)a print of a photograph of the parade that is at least 250mm x 200mm in size shall be made available to the suspect or his or her legal representative; and
(iii)the police officer in charge of the parade shall take all reasonable steps to record everything said and done at the parade and shall make a copy of the record available to the suspect or his or her legal representative;
(n)the suspect may have present during the holding of the parade a legal representative or other person of his or her choice if arrangements for that person to be present can be made within a reasonable time.
(7)The following questions are to be decided according to the common law:
(a)whether or not evidence of a suspect having refused to take part in an identification parade is admissible;
(b)if evidence of the refusal is admissible—what inferences (if any) may be drawn by a court or jury from the refusal;
(c)whether, after such a refusal, evidence of alternative methods of identification is admissible.
(8)If a witness is, under the supervision of a police officer, to attempt to identify a suspect otherwise than during an identification parade, the police officer shall ensure that the attempted identification is done in a way that is fair to the suspect.
Identification by means of photographs
(1)If a suspect is in custody in respect of an offence or is otherwise available to take part in an identification parade, a police officer investigating the offence shall not show photographs, or composite pictures or pictures of a similar kind, to a witness for the purpose of establishing, or obtaining evidence of, the identity of the suspect unless—
(a)the suspect has refused to take part in an identification parade; or
(b)the holding of an identification parade would be—
(i)unfair to the suspect; or
(ii)unreasonable in the circumstances.
(2)If a police officer investigating an offence shows photographs or pictures to a witness for the purpose of establishing, or obtaining evidence of, the identity of a suspect, whether or not the suspect is in custody, the following rules apply:
(a)the police officer shall show to the witness photographs or pictures of at least 9 different persons;
(b)each photograph or picture of a person who is not the suspect shall be of a person who—
(i)resembles the suspect in age and general appearance; and
(ii)does not have features visible in the photograph or picture that are markedly different from those of the suspect as described by the witness before viewing the photographs or pictures;
(c)the police officer shall not, in doing so, act unfairly towards the suspect or suggest to the witness that a particular photograph or picture is the photograph or picture of the suspect or of a person who is being sought by the police in respect of an offence;
(d)if practicable, the photograph or picture of the suspect shall have been taken or made after he or she was arrested or was considered as a suspect;
(e)the witness shall be told that a photograph or picture of the suspect may not be amongst those being seen by the witness;
(f)the police officer shall keep, or cause to be kept, a record identifying each photograph or picture that is shown to the witness;
(g)the police officer shall notify the suspect or his or her legal representative in writing that a copy of the record is available for the suspect;
(h)the police officer shall retain the photographs or pictures shown, and shall allow the suspect or his or her legal representative, on application, an opportunity to inspect the photographs or pictures.
(3)If—
(a)a photograph or picture of a person who is suspected in relation to the commission of an offence is shown to a witness; and
(b)the photograph was taken or the picture made after the suspect was arrested or was considered to be a suspect; and
(c)proceedings in relation to the offence referred to in paragraph (a) or another offence arising out of the same course of conduct for which the photograph was taken or picture made are brought against the suspect before a jury; and
(d)the photograph or picture is admitted into evidence;
the jury shall be informed that the photograph was taken or the picture made after the suspect was arrested or was considered as a suspect.
(4)If a suspect is in custody in respect of an offence, a police officer investigating the offence shall not show a composite picture or a picture of a similar kind to a witness for the purpose of assisting the witness to describe the features of the suspect.
(5)If, after a police officer investigating an offence has shown to a witness a composite picture or a picture of a similar kind for the purpose referred to in subsection (4)—
(a)a suspect comes into custody in respect of the offence; and
(b)an identification parade is to be held in relation to the suspect;
the police officer in charge of the investigation of the offence may, unless doing so would be unfair to the suspect or be unreasonable in the circumstances, request the witness to attend the identification parade and make the necessary arrangements for the witness to attend.
(6)If, after the witness has been shown a composite picture or a picture of a similar kind for the purpose referred to in subsection (4), a person is charged with the offence, the police officer in charge of investigating the offence shall, on application by that person or his or her legal representative, provide him or her with particulars of any such picture shown to the witness and the comments (if any) of the witness about the picture.
(7)If a suspect is in custody in respect of an offence and a police officer investigating the offence wishes to investigate the possibility that a person other than the suspect committed the offence, subsection (4) does not prevent a police officer from taking action referred to in that subsection for the purpose of assisting a witness to describe the features of a person other than the suspect.
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