R v MURPHY
[2018] SADC 137
•14 December 2018
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MURPHY
[2018] SADC 137
Ruling of Her Honour Judge McIntyre
14 December 2018
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
Application under rule 49 of the District Court Criminal Rules for orders excluding evidence of a photographic identification process undertaken by the complainant and recorded interview of the applicant by the Police.
Held: Application dismissed
District Court Criminal Rules r49; Summary Offences Act 1953 s97(A), referred to.
Strauss v Police (2013) 115 SASR 90; R v Conley (1982) 30 SASR 226, considered.
R v MURPHY
[2018] SADC 137
The applicant has been charged on Information with aggravated causing serious harm with intent to cause serious harm arising out of an incident at Davoren Park on 1 January 2017.
The applicant has applied under rule 49 of the District Court Criminal Rules for orders that the prosecution not be permitted to lead two pieces of evidence namely:
·a photographic identification process undertaken by the complainant on 8th April 2017; and
·a video recorded interview of the applicant by the Police on 29 March 2017.
For the reasons that follow I dismiss the application.
The Hearing
One witness gave evidence at the hearing of this application; the investigating officer Brevet Sergeant Tiller. In addition a number of documents were tendered by consent including the police investigation diary, the complainant’s declarations, the transcript of the applicant’s interview with police and the recording of the photographic identification process.
Factual Background
In the early hours of the morning on 1 January 2017 at Davoren Park the complainant was assaulted. He sustained significant injuries including fractures to his left and right eye sockets, a broken nose, a subdural haematoma, a collapsed lung, facial swelling, bruising and abrasions. As a result of his injuries the complainant was taken to hospital and was unable to speak to the police for some days. His first declaration is dated 16 January 2017.
On the day of the assault the complainant’s then girlfriend provided a description of the assailant as being a Caucasian male of stocky build, slightly tanned complexion, about 25 years old, 165 – 170 cm tall and wearing a black singlet. She told the police that she thought that she knew where this person came from. As she and Brevet Sergeant Tiller attended at that property on Easton Road, she saw the man she says was responsible for attacking her partner coming out of the address; that man was the applicant. She did not convey that information to Brevet Sergeant Tiller until after he had spoken to both the applicant and another man in the house. No action was taken in relation to the applicant by police at this stage as the police wished to obtain a statement from the complainant.
The first statement was obtained from the complainant on 11 January 2017 and was signed by him on 16 January 2017. The complainant says that he never discussed this matter with his then girlfriend. He said he broke up a fight between a person he knows as “Millsey” and someone he described as “an Italian fellow”. He was talking to “the Italian fellow” when he was hit from behind. He fell to the ground and was kicked to the face and body. He said that whilst he was on the floor he saw the Italian fellow kick him in the face striking him on the left hand side of the face. He did not recall anything from there on until he regained consciousness in hospital. He provided a description of the Italian fellow as follows:
… being of Italian descent but Australian. He is aged about 19 years old, about 5 foot 6 tall of medium build; he has short spikey hair that has product in it. I am not sure of his name or where he lives. I have seen him drive a black Holden Astra before, I am not sure if it is his. He hangs around an address on Eastern (sic) Road. I cannot recall what he was wearing that night.
The complainant participated in a photographic identification process at the Elizabeth Police Station on 8 April 2017. This is documented in both his statement of the same date and a video recording. The complainant viewed 8 photographs, identifying photograph 4 as the person who “stomped” on his head during the incident. Photograph 4 was the applicant.
In subsequent statements to police the complainant refers to having had prior contact with “the Italian guy” and in a declaration dated 25 October 2017 said that he believed “the Italian guy” was called Luke. In his most recent declaration of 1 December 2018 the complainant said that he never discussed the matter with his now ex-girlfriend. He says that he cannot recall how he came to remember that “the Italian guy” was called “Luke”.
Brevet Sergeant Tiller gave evidence at the voir dire of speaking to the complainant’s then girlfriend and identifying the applicant as a person of interest. He gave evidence that he made a number of phone calls to the applicant and also attended at his home address on at least two occasions. He left messages indicating that he wished to speak to the applicant about the assault. Brevet Sergeant Tiller said that he received a phone call in which he arranged for the applicant to attend at the police station on 29 March 2017. The applicant attended as arranged and was cautioned. The applicant nonetheless participated in a tape recorded interview. At the conclusion of that interview he was arrested and charged.
The photographic identification
The applicant relies upon three grounds to challenge the photographic identification process. The first is that it is said that the identification is unclear in nature as is the use to which the Crown proposes to lead the evidence. This was because it is said that “The complainant purported to identify the ‘kicker’ which identification is now recognition of a person with whom the complainant claims repeated involvement”; the photo board included a photograph of only one person known to the complainant and it is apparent from later declarations that the complainant deposes to “relatively substantial dealings” with the person he purported to identify.
The second ground is that it is said the evidence of the complainant in relation to the purported identification of the accused is incoherent, inconsistent and unreliable. The third ground is that it is said that the manner in which the identification procedure occurred is such as to give rise to a substantial risk of contamination and/or displacement in that “having identified the only person known to him on the photo board there is a substantial risk that the complainant’s memory has been contaminated or displaced”.
Finally it is said that, coupled with the general unreliability of the complainant, the inclusion of the purported identification would amount to oppression.
The prosecution says that it relies upon the complainant’s identification as recognition evidence and contends that there is nothing wrong with the photographic identification per se. It is said that what was described as the evolution of the complainant’s recognition of the applicant is a matter for the jury. The prosecution further contends that there is no demonstrated prejudice or reason for exclusion of the photographic identification.
I was referred in argument to the decision in Strauss v Police[1]. This is a very helpful analysis of identification evidence in the context of a purported Facebook recognition. “Facebook identifications” or identifications where a witness has recognised a perpetrator from the Internet, a newspaper article or some other source may be admissible depending on the circumstances in which the witness purports to recognise the perpetrator. These circumstances are crucial to the exercise of the discretion of whether or not to exclude the evidence and to the extent of the warning that a trial Judge will need to give to a jury.
[1] (2013) 115 SASR 90
Whilst there are significant embellishments to the complainant’s identification these post-date the photographic identification process undertaken by the police. In Strauss his Honour Justice Peek said that it is critical that an investigating officer take a full description of the offender from witnesses at the earliest possible time. This is precisely what occurred in this case. The police spoke to the complainant, in hospital, as soon as he was fit to discuss these matters. He provided the description that I have outlined above.
Justice Peek, in Strauss, drew a distinction between a purported identification from photographs on social media with the high degree of suggestibility likely to be involved in such an identification compared with:[2]
….the structured nature of a formal photographic identification process in which a certain number of appropriately similar foils are used in the context of the giving of strict instructions to the witness that a picture of the offender may or may not be present in the array.
[2] Para 60
In the current matter police provided an array of eight photographs of men of similar appearance in line with the complainant’s description. The complainant was given the usual and appropriate directions including that the offender may or may not be present in the array. It is apparent from viewing the video recording of photographic identification process that the complainant carefully viewed the various photographs before unhesitatingly selecting the photograph of the applicant.
I do not see any unfairness in the photographic identification procedure. In effect the complaint is about what happened subsequently and the forensic difficulties that this may cause the applicant. The subsequent declarations of the complainant admittedly demonstrate what was described as “an evolution of recognition” but these are matters which may be the subject of cross examination and comment at trial. They are matters that can and ought to be left to a jury.
I do not consider that the evidence related to the photographic identification process ought to be excluded.
The interview
The applicant says that, from the time at which he attended at the Elizabeth Police Station and his name was announced to Brevet Sergeant Tiller, he was subject to defacto arrest and therefore entitled to arrest rights under s97(A) of the Summary Offences Act 1953. It is common ground that the applicant was not informed of these rights. The prosecution contend that it was not necessary to do so because the applicant was not at the time under arrest.
I was referred in argument to the decision of R v Conley[3] where King, CJ said as follows:
A person is apprehended for the purpose of ss. 75 and 78(1) when he is deprived of his liberty by a police officer irrespective of whether formal words of arrest are used. Frequently a police officer invites or requests a suspect to accompany him to a police station or to some other place for the purpose of pursuing police enquiries and the suspect voluntarily complies. Such an invitation or request does not amount to deprivation of liberty (The Queen v. King29, per King J. at pp. 128-129), even though the police officer would have made an arrest if the suspect had not complied and even though the suspect believed that that would be the result of non-compliance. If, however, the circumstances are such that the words uttered, although in form an invitation or request, would in the circumstances convey to a reasonable person that he had no genuine choice as to whether to accompany the police officer, it becomes incumbent upon the police officer to make it clear that the suspect is not under arrest and is free to refuse to accompany him, and, in the absence of such an intimation, the apparent invitation or request may constitute an apprehension.[4]
[3] (1982) 30 SASR 226
[4] At pp 239-240
Brevet Sergeant Tiller conceded that his notes in the investigation diary referred to the arrest of the applicant in notes dated 5 February 2017 and 8 March 2017 but said that, despite this, it was not his intention to arrest the applicant at that stage. His purpose in asking the applicant to attend at the Elizabeth Police Station was to speak to him about the assault and subsequently to report him. Brevet Sergeant Tiller said that his decision to arrest the applicant was largely due to what the applicant said in the course of the interview. Brevet Sergeant Tiller administered the full arrest rights at the end of the interview.
I accept the evidence of Brevet Sergeant Tiller but for present purposes his intention is not the issue. The applicant was asked to attend the police station which he did willingly. He was properly cautioned by Brevet Sergeant Tiller and it is clear that he understood the caution. Despite that he proceeded to answer police questions. There was no evidence given by the applicant that he felt that he was not at liberty to leave or that he felt constrained to answer the police questions. I do not consider that the applicant has established that he was under defacto arrest at the time of the interview. In those circumstances I decline to exclude the interview.
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