R v Nguyen

[2003] NSWSC 1068

CITATION:	R v Tuan Minh Nguyen [2003] NSWSC 1068
HEARING DATE(S):	10/09/03 - 18/09/03, 22/09/03 - 9/10/03, 13/10/03 - 23/10/03, 27/10/03 - 14/11/03
JUDGMENT DATE:	17 November 2003
JUDGMENT OF:	Buddin J
DECISION:	Evidence ruled inadmissible.
CATCHWORDS:	Objection taken to identification evidence - fresh application after further material made available - numerous factors taken into account in determining whether the unfair prejudice of the evidence outweighs its probative value - evidence excluded.
LEGISLATION CITED:	Evidence Act
CASES CITED:	Alexander v The Queen (1981) 145 CLR 395 Domican v The Queen (1992) 173 CLR 556 Festa v The Queen (2001) 185 ALR 394 Pitkin v The Queen (1995) 69 ALJR 612 R v Blick (2000) 111 A Crim R 326 R v Marshall (2000) 113 A Crim R 190 R v Tugaga (1994) 74 A Crim R 190
PARTIES :	Regina Tuan Minh Nguyen
FILE NUMBER(S):	SC 70087/02
COUNSEL:	R Herps (Crown) G Wendler (Accused)
SOLICITORS:	SE O'Connor (Crown) Van Houten (Accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

MONDAY 17 NOVEMBER 2003

70087/02 – REGINA v TUAN MINH NGUYEN

JUDGMENT

1 Tuan Minh Nguyen (the accused) is charged with the murder of Omar El-Chami Batch at Bankstown on 16 February 2001. At the outset of the trial and before the jury was empanelled, objection was taken to evidence being led from a young person, who by reason of his age I will refer to as L, in which it was anticipated that he would purport to identify the accused as having shot the deceased. I overruled the objection. In the course of doing so, I set out in considerable detail the evidence which the Crown indicated that it expected to lead in its case. Apart from L, there are a number of other persons to whom I shall refer, during the course of these reasons, by initials only.

2 Set out below is the evidence to which I have just referred:

The shooting of the deceased occurred at about 3.15 pm on Friday 16 February 2001 at Bankstown Railway Station. It was the culmination of events which had their genesis in an incident which had occurred in the same area some days before. On 13 February at about 3.15 pm a group of Lebanese schoolboys set upon an Asian boy [whom, by reason of his age, I shall refer to as D] and his friend in the mistaken belief that he was the boy who had scratched an Asian boy several days before. A fight ensued and D produced a pen which he used to stab a Lebanese boy in the leg. This incident provided the impetus for the confrontation which occurred on 16 February. Groups of Asian and Lebanese youths, gathered in anticipation, it would appear, of a fight taking place at that time.

D arranged for a number of his friends to come and provide him with support. He also asked his brother, T, to bring along some of his friends. The accused is said to be one of his friends. D and his friends arrived as a group outside the National Bank at Bankstown. They then went to the area of the bus shelters, and awaited the arrival of incoming buses on which various Lebanese schoolboys were anticipated to be travelling. In due course a fight broke out between D and some Lebanese schoolboys. At some stage, T got involved in order to provide assistance to his brother. A second fight also appears to have broken out in which L, was set upon, by other Lebanese schoolboys, and beaten up in one of the bus shelters.

During the course of the fight, the sounds of three gunshots were heard. All three bullets struck the deceased. One bullet entered his left thigh, another his left buttock and another his upper left chest. That bullet, which proved to be the fatal shot, fractured his aorta. The deceased collapsed at the scene and died in hospital shortly thereafter. Ballistics evidence established that two different weapons were used in the shooting of the deceased. The Crown case is that the accused fired at least one of those shots. Although, as I understand the situation, the jury will be asked to infer that he did in fact fire the fatal shot, its case does not depend entirely upon being able to establish that he did so.

The Crown case is that prior to the fatal shooting, T and his friends, namely LD, KN and the accused, were also at the scene. However they went to the Gourmet Corner Café, some 20 - 30 metres away from the scene of the shooting, where they sat down at a table outside the café. They each had with them a bottle of soft drink which had been removed from a fridge which was inside the café. The fridge had only recently been restocked. At some stage during the altercation T, having become involved in it, called for assistance from his group of friends. In an interview conducted with him by police on 31 May 2001, L informed the police that the person who shot the deceased had come over from the café. There is some support for this part of his evidence. The four bottles, two of which remained on the table and two of which were located at the scene of the shooting, were subjected to DNA analysis. DNA, consistent with that of the accused, was found on a bottle located at the cafe. I am informed that that evidence is not to be the subject of challenge. The accused’s case, to which l will refer in due course, is that the presence of his DNA can be innocently explained as can his fingerprint, which was said to be located upon the arm of a chair, adjacent to one of the tables at the café.

L was first interviewed by police on 24 April 2001. It is fair to say that he said nothing at that time which proved to be of any particular assistance to investigators, although he did describe the events in question and his participation in them. He certainly did not indicate that he was in a position to make an identification of the shooter, or even that he had seen someone in possession of a gun. He did however agree to participate in a “video walkaround” which was conducted on 31 May. As I have said, at that stage he indicated that the shooter had come from the café. He said that although the man was a stranger to him, he knew that he was “D’s brother’s friend” and that he was wearing a hat just prior to the shooting. He said that he was about 1½ - 2 metres away from the point at which the shooting took place. He attributed his inability to provide greater detail on the occasion of his first interview to the fact that he was fearful of the consequences, were he to have done so.

On 14 August 2001 the accused was interviewed by police. He admitted knowing both T and his brother, D. He said that he could not, by reason of the passage of time, remember where he had been at the time of the shooting. Upon request he supplied a sample of his DNA to police. On 8 September he was informed that there was a match between the sample he had provided and material which had been located at the Gourmet Corner Café. He was then asked if he was prepared to participate in an identification parade. On 12 September he indicated, through his solicitor, that he was not prepared to do so. Following that indication, police invited L to participate in a videotaped photo identification procedure. He also participated in a similar procedure, two days later.
…
The accused has given notice of alibi. In it he said that at the relevant time he frequented Bankstown Shopping Centre, including attending at the Gourmet Corner Café. He admitted that he was at that cafe with his wife on 16 February 2001 but said that he was only there between the hours of 1 and 2 o’clock. He denied that he was in the company of KN, T or LD on that day although he conceded being acquainted with each of them at the time. His case is that he was with his wife making a car loan payment at Maureen Motors at Cabramatta between the hours of 3 pm and 4 pm and thus was not responsible for the shooting of the deceased.

3 I referred to the identification evidence in the following terms:

On 12 September Detective Sergeant Buchardt, a police officer who was not associated with the investigation, conducted a conversation with L which was filmed. As he was speaking with L, he completed a pro forma Video Photographic Identification Form. A video containing an array of photographs of Asian males was then shown to L. This is what L said about photograph 13 in the array which, it is accepted, depicts the accused:

A50 …The guy in 13 can you make his hair go shorter?

Q51 The guy in?
A51 13.

Q52 13. I’ll, I’ll try and go back to 13. I’ll pause it on 13, I can’t alter his hair, I can only show what’s there. Ok, 13. What can you tell me about 13?
A52 This guy 13, he’s got a face like the guy who shot, but his hair’s different, longer now, it is longer like, before it was not that long, and…..he has got a beard same as before.

Q53 Sorry, what was that about the beard?
A53 Beard. (Pointing to top lip)

Q54 He, he’s got a beard.
A54 Yeah, small just like….(inaudible).

Q55 So what you are saying is the fellow that did the shooting, does he have a beard?
A55 Just like, he had, it seemed like he had, hadn’t shaved for one or two days.

Q56 Oh, like this fellow?
A56 Yeah.

Q57 Ok, so who is number 13, what does he do?
A57 He look like the guy who shoot.

Q58 Do you know his name?
A58 No audible reply. (shake of the head)

Q59 No?
A59 No.

Q60 How sure are you?
A60 this one,….80.

Q61 80 percent?
A61 Yep. If you change the hair and put a cap on him.

Q62 If I could change the hair…
A62 Cap.

Q63 or put a cap on him, was it?
A63 Yep. Change the hair and put the cap on.

Q64 Or not put the cap on?
A64 Put the cap.

Q65 Put the cap. Yeah, so if I could change the hair or put the cap on him, what do you say then?
A65 It could be better.

Two days later, clarification was sought from L as to some of the things he had indicated. The following exchange took place:

Q You previously said in your identification, words similar to, That you’re eighty percent sure …
A Yeah, now one hundred percent.

Q … that this man was the shooter, do you agree you said that?
A Yeah.

Q Now what did you just say about one hundred percent?
A One hundred percent if you get, try and get it, make his hair go shorter, put a cap on, if I then, if I can identify it again, I’d be a, could say it’s a hundred.

4 A fresh application in similar terms to the original objection has now been made. The Crown concedes that it is appropriate for me to entertain such an application. Authority supports such an approach. In R v Marshall (2000) 113 A Crim R 190, Spigelman CJ, with whom Heydon JA and James J, agreed said:

The written submissions in this case proceeded on the basis that the admissibility of the evidence was to be determined in accordance with the material before the trial judge on the voir dire. In a sense that may be so. That does not, however, mean that the trial judge is not obliged to revisit the issue as and when the factual assumptions upon which his decision on the voir dire was based, proved to be incorrect.

Hunt CJ at CL with whom Gleeson CJ and Abadee J agreed said in Tugaga (1994) 74 A Crim R 190 at 193-194:

It is always open to the trial judge in the appropriate case to withdraw evidence of identification from the jury’s consideration where, after it has been given, its quality has been demonstrated to be such that its probative value is outweighed by its prejudicial effect. … The occasion for its exercise would usually be where the weakness of the evidence (and thus its disproportionate prejudice) had not been established in any voir dire examination, although it would not depend upon whether such an examination had been held: or it may arise simply because the judge had altered a conclusion formed upon an earlier objection, although again it would not depend on whether there had been such an earlier objection. (at 193) (emphasis added)

5 Before turning to a consideration of the fresh application, it is necessary to say something briefly about the original application. As I have indicated, it was made and determined before the jury was empanelled. The parties decided that it should proceed solely upon the basis of the written material which was placed before me. That material included the transcripts of the interviews which had been conducted by police with L on 24 April 2001 and 31 May 2001 respectively, together with video tapes of the procedure in which L gave his purported identification of the accused on 12 September 2001 and 14 September 2001 respectively. I was also provided with transcripts of each of those video taped procedures together with a limited number of statements from witnesses whom it was then thought would lend support to the Crown case. I expressed misgivings at the time about giving a decision about the matter, bearing in mind that I was then operating in something of a vacuum. Nevertheless, the parties understood that the matter could be revisited, should circumstances warrant the taking of such a course.

6 The circumstances giving rise to the matter being re-agitated arose only comparatively recently. As it happened, the Crown chose not to call L until a very advanced stage of the trial. Indeed evidence was led or received from more than 60 witnesses before he was called. When he was called, I was then made aware for the very first time of a number of matters which were capable of bearing directly upon the issue of whether the evidence of identification by him should be admitted. First, I was informed that he was in custody, a matter of which the Crown was most anxious that the jury should not be made aware, at least at that stage. In fact, the Crown requested that steps be taken to disguise that fact from them. Secondly, I was informed that he was in custody because he had been convicted since this incident, of two separate serious offences which were unrelated to it, and which indeed were committed sometime after it. However it also emerged that he was still awaiting sentence in respect of those matters, and that the sentence proceedings in the District Court had been adjourned on more than one occasion. I was later informed that they are now listed for hearing in December of this year. Thirdly, information emerged concerning L’s purported identification of another person during the course of the identification procedure in which he also identified the accused. He asserted that that person had robbed him two days prior to the identification procedure. He said that that person had also been present during the shooting. The information was that at that person’s trial for robbery in the District Court, immigration records had been produced which established that he was in fact overseas on 16 February 2001. For that and other reasons, the identification evidence of L in respect of that person had been excluded by Sides DCJ. That information, it may be noted, has been in the hands of police since July 2002. Other material also emerged during debate that followed these revelations.

7 No explanation has been forthcoming as to why this material was not disclosed to the representatives of the accused until well into the trial. Nor prior to the matter coming to my attention, was any thought apparently given by the Crown to obtaining and disclosing the transcripts and other material arising from the various proceedings in the District Court. So far as the sentence proceedings of L were concerned, it seems that the Crown took the view that they were irrelevant to the matter. That such a situation could have been permitted to occur is, to say the least, most unsatisfactory.

8 Because the material to which I have just referred was not immediately available, the fresh application in respect of L’s evidence, was stood over until it could be provided. I made various orders in an endeavour to have it provided with expedition. As events transpired, it was a number of days before it all became available. In the meantime, the jury continued to hear the balance of the Crown case. This course was adopted so as to minimise the extent of the disruption to the trial which had been thus created.

9 Eventually last week I was provided with a substantial amount of additional material which was relevant to this fresh application. The parties agreed that this application should proceed not only upon the basis of that material, but should also include the material that was originally placed before me together, of course, with the evidence which has emerged during the trial itself. I was informed that but for the identification evidence the Crown case was for all intents and purposes, now complete. I have also had the opportunity of carefully examining the videotapes of the identification procedures.

10 Evidence was led before the jury from L. As I understand the situation, it covered all the matters about which he was able to give evidence, but for the identification evidence. The Crown Prosecutor informed me that he had had a conference with the witness, but had deliberately not asked him about the identification evidence because of a concern that in so doing, he may contaminate it. What that meant of course was that neither he nor anyone else knew whether the witness would come up to proof upon the issue of identification. Nevertheless the parties agreed that this application should proceed upon the basis of what is contained in the material to which I have just referred, concerning the witness’ out of court identification.

11 I have now had the advantage, which I did not have at the outset of the trial, of having heard the evidence in the Crown case. The Crown accepts that there are a number of respects in which the evidence has not come out in a way in which it may have reasonably anticipated, or indeed hoped for. This necessarily must have an impact upon the way in which the cogency of its case now stands to be assessed. I am now of course in a far better position to determine how the evidence to which objection is taken, fits into the overall Crown case.

12 Nevertheless in broad terms, the Crown case has unfolded in a way that is generally consistent with the summary to which I earlier made reference. Although the evidence of the independent eyewitnesses, who for the most part were young schoolchildren, revealed significant variations both in observation and recollection, there was a fairly consistent body of evidence to the effect that at least one bottle was smashed during the course of the fight by one of the participants in it, following which three gunshots were fired in quick succession by the same Asian gunman. Remarkably not one witness in the Crown case gave evidence of having seen a second gunman, notwithstanding the fact that the ballistics evidence established irrefutably that there must have been a second person involved in the shooting.

13 I am prepared, in light of the fact that the accused’s DNA was located upon a bottle at the Gourmet Corner Café, to proceed upon the basis that he was present there just before the fatal incident. To that limited extent, the finger of suspicion points in his direction. Nevertheless the same observation can be made of a number of the other witnesses of Asian extraction who have given evidence in this case. I shall return to consider that evidence in due course. The critical question remains however whether the Crown can establish to the requisite standard that the accused participated in the fight, and even more fundamentally whether it can establish that he was the gunman or one of the gunmen. To establish each of those propositions, the Crown case depends solely upon the evidence of L. Accordingly, the Crown accepts that the jury could only convict the accused if it was to accept the critical parts of his evidence beyond reasonable doubt.

14 It is submitted that the evidence of identification which L could give is of such negligible probative value that its exclusion, pursuant to ss135 and 137 of the Evidence Act, is required. In considering the issues to which those provisions give rise, I have had regard to the following matters:

i. The identification was of a person who was a stranger to the witness.

ii The first opportunity that the witness had to make an identification was 7 months after the incident.

iii The witness was himself only 17 years of age at the time.

iv The witness was undoubtedly in a highly emotional state at the time of his purported identification, having been, on his evidence, the victim of a savage attack just prior to the incident. He said that about 20 Lebanese boys participated in the fight in which he, D and T were the only Asians involved. It can be inferred, in the circumstances, that he remained apprehensive about the prospect of a further attack at the time of the incident.

v His capacity to observe must also have been significantly affected by reason of the fact that just prior to his observation of the gunman, he had been punched in the eye (a matter of which he informed the police in an interview).

vi Although he said that he was close to the gunman when he made his observation of him, there was little evidence to indicate whether or not his capacity to observe was otherwise affected. It is not clear whether, for example, he was face on or side on to the shooter. Nor is it apparent whether his view was in any way obscured by the presence of other people in the area. His own evidence, and indeed that of other witnesses, certainly suggests that there were a large number of people in the immediate vicinity when the shots were fired. There was also evidence that the scene was one of utter confusion as people were running away from it after having heard the first shot. (It is to be noted that L was only able to make an observation of the gunman firing the second shot) Nor is there any evidence as to the length of time that the witness had in which to observe the gunman. The other available evidence would suggest that it was but a very short period of time.

vii The witness is the only person from amongst a very large number of people present at the scene, many of whom were observers rather than participants in the incident, to make an identification. No fewer than 24 other persons were unable to make an identification from the same array of photographs that were shown to L, even though many of them were apparently, it would seem from the evidence, in a reasonable position to observe the gunman.

viii Notwithstanding his admitted involvement in the matter, the witness (unlike many of the other participants in this incident) has never been charged with any offence in respect of this matter. That being so, he still remains in some jeopardy. No doubt that factor would, of itself, require that a warning be given to the jury.

ix It is not without significance that the witness was, at the time of his first interview, clearly suspected by police of being the gunman. Indeed evidence emerged for the first time during the course of the trial that an independent eyewitness, who admittedly was a young school boy, had selected L from photographs on the day after the shooting as being the gunman. That witness had said that he was 100% certain as to that identification. Furthermore, L was made aware by the police in that interview that other eyewitnesses had indicated that the person who had been attacked in the bus shelter (the witness having conceded that that was a reference to him) was also the gunman. He denied being the gunman but it was obvious to the witness that he was, in the minds of police, a suspect, if not the suspect, for the murder. Various other questions asked of him concerning his having washed the clothes that he had worn on that day, and concerning his having changed his appearance, would have only served to confirm the impression that he would have received about his status as a suspect. No doubt this prompted the witness to decline, as was his entitlement, the opportunity to participate in an identification parade. In those circumstances, it would be open to the jury to conclude that the witness may have been inclined to have made an identification of someone else in order to deflect attention away from himself. At the very least, it is a matter about which the jury would have to be given a warning.

x In his interview with police on 24 April, the witness gave descriptions of the clothing worn by the persons at the café. It was in very vague terms and was in any event given more than two months after the event. He provided no description about the clothing specifically worn by the gunman because during that interview he maintained that he had not seen the gunman. He did say however that one of the persons at the cafe was wearing “a jean top” which was “light blue sky in colour”. That prompted the police officer to inform him that a “number of witnesses [have said] that the Asians that were sitting at that coffee shop were wearing dark clothing, not blue, dark”. By the time he gave evidence however, L said that the gunman was wearing dark clothes which were “sort of grey/black”.

xi The first occasion on which any physical description of the gunman was given by L was on 31 May (that is 3½ months after the incident). Again the details provided by the witness were sketchy. Nevertheless he did describe the gunman as having “very short hair”. That description is not only not supported by the evidence of the independent eyewitnesses but it is, for the most part, significantly at odds with it. Nor is the Crown able to establish what the accused’s hair length was at the time of the incident. Although it has available to it a passport photo showing the accused with short hair, it is unable to prove when the photo was taken.

The gunman was also said by L to be wearing a “greeny fishing cap”. He was not, as I understand the evidence, ever asked to select from an array of hats, the type which he had in mind or even to better describe it. The only possible support for this evidence comes from an eyewitness who said that one of the Asians who was involved in the fight was wearing a “fishing style kind of black hat” which was “like a cowboy hat or something – I am not sure, a surfie hat or something”. Apart from that piece of evidence, the balance of the evidence upon the subject of what the gunman was wearing on his head, was contrary to the witness’ evidence.

The witness also said that the shooter was “tall” and “chubby”. Again that description is not supported by the evidence of other eyewitnesses. Moreover it is a quite inaccurate description of the accused’s actual physical appearance.

Finally, another eyewitness called in the Crown case assisted in the creation of an identikit photo of the gunman. It did not bear much resemblance to the accused.

xii L said that he had seen the shooter on three occasions on the day in question. Those locations were near the alleyway adjacent to the National Bank in the Old Town Plaza area, at the coffee shop and during the fight. There is no evidence as to how long each encounter was. The gunman was always in the company of other people which increases the possibility that L was confused or mistaken, especially as he said that the gunman was no longer wearing his hat at the time of the shooting.

xiii As I have said the witness, in his first interview with police, denied seeing the gunman. In doing so, he conveyed the distinct impression that he was simply not in a position to be able to do so. He later maintained that he had not told the truth in that interview. He said that his reason for doing so was because of his fear of reprisals. This can only be a reference to a fear which he entertains of the accused or of someone acting on his behalf. The possible prejudice to which this suggestion may give rise is manifest.

xiv The witness was able to hear only two gunshots when plainly enough the evidence established that there were a total of three in all.

xv So far as the array of photographs which the witness was shown is concerned, it suffers from the defect that notwithstanding his description of the gunman as having “very short hair”, none of the photographs, including of course that of the accused, were of persons with “very short hair”.

xvi By way of contrast, the array is also flawed in that, although there was no mention by the witness of the gunman having a moustache, each of the persons in the array, including the accused, are displayed as having a moustache. Furthermore during the identification the witness refers, for the first time, to the shooter as having a “beard”. Upon further questioning, it is apparent that he is referring to a moustache or facial hair of one or two days growth on his upper lip. The displaying of photographs of persons with a moustache may well, in those circumstances, have been highly suggestive. The material which is now available to me, as it happens, also reveals that the photos of some of the other persons in the array were digitally enhanced in order to provide those persons with a moustache which they did not, in fact, have.

xvii A viewing of the identification made by L, after he had seen the array of photographs, reveals that it was neither spontaneous nor convincing. He knew that the reason that he was being shown the photographs was to see if he could recognise anyone associated with the shooting of the deceased. The accused was in fact only the fourth person out of a possible 12 that the witness purported to recognise. In other words, three other people attracted his attention prior to his having recognised the accused. His act of recognition, which came only after a considerable period of time spent looking at the image of the accused, was even then expressed in qualified terms. His level of certainty was, he said, in the order of 80%. That degree of certainty, he said, was also subject to two factors – namely his remarks concerning the length of the person’s hair and the fact that he was not wearing a hat. He said that if those issues could be addressed, his identification “could be better”.

xviii It is apparent from what I have said earlier that the witness was plainly wrong in identifying the person in the array who bore the number 19, as being someone who was present at the scene of the shooting. In other words, in relation to his assertion that that person was present when he was not, the witness has been demonstrated to be plainly unreliable. I now have available to me the statement which L made for the purposes of the proceedings against that person. In it, L revealed that far from that person being a stranger to him, he had seen him and his companion at Bankstown Railway Station on at least six previous occasions. He knew him “as Koi’s friend” and also said that he was at the police station at the time when he participated in the interview on 14 September 2001.

xix Police conducted inquiries in respect of the other persons whom L purported to identify during the identification procedure. So far as the person displayed in photo 12 was concerned, L said that he looked like the person “who backed up the shooter”, a fact of which he was 70% - 80% certain. Police inquiries reveal that there is no association between that person and the persons of interest in this case, namely D, T, KN, LD or the accused. As to the person whose photograph was displayed at number 16, L said that he looked like one of D’s friends, although in fairness to him he said that he did not know if he was there at the time of the incident. Again police inquiries reveal that there is no apparent association between that person and the persons just referred to. Moreover, records produced by that person indicate that he was at work at Villawood that day.

I have now been made aware that this information has been in the possession of police since late 2001 which makes it all the more surprising that it was not disclosed until so late in this trial.

xx L was however unable to identify in separate photographic arrays either LD (who admitted that he was involved in the incident) or KN. Given the rest of the evidence, it might have been expected that he would have been able to do so. Nevertheless during the course of the photo identification array which contained the photograph of LD, L referred to another photograph and said in respect of that person, that he “looked like the guy that was sitting with the guy that shoot at the café shop”. I am now informed, having raised the matter with the Crown, that police inquiries have revealed that that person could not have been present at the incident since he was in custody at the time. This is further material that is capable of undermining the reliability of L’s identification evidence.

In summary, there are five people in all whom L has, to various degrees of certainty, purported to identify in respect of the incident. So far as the identifications made in respect of the four people other than the accused are concerned, police inquiries have revealed that there is no basis for relying upon any of them.

xxi As I indicated earlier, the decision was taken to further interview L, two days after the photo identification process had taken place. That initial procedure had been conducted, no doubt quite appropriately, by someone unconnected with the investigation. L well knew of the involvement of Detective Doueihi (who conducted the subsequent interview) in the overall investigation because he had been twice interviewed by him during the course of it. Detective Doueihi informed L that he had viewed the photo identification procedure for himself, and that as a result wished to ask further questions of him by way of clarification. The mere fact that the detective felt a need to clarify matters, reinforces the view which I earlier expressed concerning the uncertain and qualified nature of the identification itself.

However what occurred during the course of that further interview, gives rise to other significant difficulties. The detective asked questions of L in respect of each of the persons whom he had purported to identify. Before the questions by way of clarification were asked in respect of the accused, the witness was shown his photo. However, it was shown to him in isolation from the other photos in the array. Thereafter it remained sitting right in front of the witness for the balance of the interview. On my estimate, it was there for a period of about eight minutes. It is apparent that the witness continued to look at it on a fairly frequent basis as the interview progressed. Moreover he was reminded by the officer in considerable detail of what he had said two days previously during the original identification process. More than half of that subsequent interview (extending to six typed pages) was devoted to questions pertaining solely to L’s identification of the accused. Although there still remained qualifications in his identification (by reason of the person’s hair length and the absence of a hat), L was prepared, during that interview, to express his degree of certainty as then being 100%. The witness’ greater confidence in his ability to identify the man in the photo as being the gunman appears to have arisen directly as a result of that subsequent interview. Indeed the Crown confirmed, that it was only after this second interview of L, that the accused was arrested and charged. It is thus clear why the officer sought to have the witness “clarify” his earlier answers. Notwithstanding the officer’s understandable desire to have the witness clarify his earlier answers, the effect upon the witness may well have been however to positively reinforce a view that his earlier uncertain identification had in fact been “the correct one”. The witness still had at the time, of course, a powerful incentive to assist the police in their investigation of the matter. It is impossible to know what impact, conscious or otherwise, that that factor may have had upon him.

Accordingly it is reasonable to conclude, in all the circumstances, that the way in which the further interview was conducted and what occurred during it, has led to a distortion of the process of identification itself. It is extremely difficult to see how cross-examination of the witness and/or directions to the jury could ever cure the inevitable prejudice that has been thus occasioned. Furthermore, should the witness now purport to identify the accused it could not be said with any confidence whether such an identification was in fact a recollection of the face of the gunman as distinct from being a recollection of the person displayed in the photograph. This is an example of the “displacement effect” which the courts have been vigilant to guard against.

In the present context the remarks of the High Court in Pitkin v The Queen (1995) 69 ALJR 612 are particularly apposite and bear repetition. The Court, in a joint judgment, said:

However, neither wisdom nor common sense supports the conclusion that, in circumstances where the Crown case against an accused rests solely on a witness’ purported identification of him through being shown photographs in a police station, that identification need not be clear and unambiguous.
The use of photographs of suspects by law enforcement agencies for the purpose of identifying an offender is a necessary and justifiable step in the course of efficient criminal investigation. None the less, it is attended by some danger of consequential and unfair prejudice to an accused. One such danger is that identification through a photograph is likely to be less reliable than direct personal identification since differences in appearance between the offender and a suspect may be less noticeable when a photograph of the suspect is used. In that regard, once there has been purported identification through a photograph, any subsequent direct identification may be less reliable by reason of the subconscious effect of the photograph upon the witness’ recollection of the actual appearance of the offender. Another such danger is that a witness who is shown photographs by investigating police will ordinarily be desirous of assisting the police and will be likely to assume that the photographs shown to [him or her] by the police are photographs of likely offenders. In that context, and in an environment where the ultimate accused will necessarily be absent and unrepresented, there may be subconscious pressure upon the witness to pick out any photograph of a “suspect” who “looks like” the offender notwithstanding that the witness cannot, and does not purport to, positively identify the subject of the photograph as the offender. (at 614-5)


Before leaving this aspect of the matter, it is to be recalled that L’s identification remained qualified by two factors – the length of the gunman’s hair and the fact that he was wearing a hat (although, as I have indicated, apparently not at the time of the incident). This demonstrates the need to ensure that the array of photographs which is compiled is as authentic as possible. It is axiomatic that the photographs selected for inclusion in the array should be totally consistent with the original description provided by the witness of the suspect’s physical features and any other identifiable features, including the clothing worn by him or her. It therefore follows that very considerable care needs to be taken to ensure not only that the original description itself is accurately recorded, but that the details of it are comprehensive and that they are obtained as close in point of time to the incident, as circumstances permit.

xxii I have now had made available to me the transcript of L’s sentence proceedings on 12 September 2003. Those proceedings were ultimately adjourned. It is apparent that one of the main reasons why the witness’ legal representatives wished to adjourn the proceedings was in order that their client should first give evidence in this trial. So much is clear from a letter which they wrote to the District Court. The presiding judge in those proceedings read it out aloud (in closed court but in the presence of the witness). In part it read “I anticipated that if he gave evidence in the manner which I was advised that he would be entitled to a letter of assistance and that I should organise for that to be ready for the sentence hearing”. The Crown points out that no such letter has yet been sought. That is no doubt because the event which would entitle the witness to the letter, namely the giving of evidence, has not yet materialised. Should the witness give evidence which significantly implicates the accused in this offence, then he would be entitled in accordance with well-established principles by reason of his assistance to the authorities, to a significant discount on the sentences that he would have otherwise been expected to receive. In other words, the witness could entertain a legitimate expectation of being dealt with much more favourably than would otherwise be the case, should he give evidence in accordance with the various statements which he has made. For a witness to have such a powerful incentive to give evidence in a particular fashion, even if it is consistent with what he has said previously, would undoubtedly require that an appropriate warning to given to the jury.

15 There is one further aspect of what occurred in L’s sentence proceedings on 12 September which is worth noting. The transcript records L as saying at one stage “When I get to Court the same thing, I’m underground, they say I have to go up, they have to force me up – because I don’t want to sit up in the witness box and say something I shouldn’t say”. It is clear from the context that he was referring to his giving evidence in this matter. Although the remarks made by L are somewhat cryptic and ambiguous, it could be reasonably expected that they would provide useful material in the hands of a cross-examiner.

xxiii L was convicted in June 2003 of having, on 27 March 2002 detained a 16 year old female “without her consent and with intent to obtain an advantage, in circumstances of special aggravation in then being in company with each other and at the time actual bodily harm was occasioned [to her]”. In essence the Crown case was that L went to the victim’s premises where he induced her to come out to the front of her house upon the pretext that her boyfriend was waiting for her in a car which was parked nearby. She was then forced into the car by companions of L. She was driven to a park where she was repeatedly assaulted and subjected to other indignities. The vehicle then drove off leaving the victim behind. Given L’s admissions to police about the matter, it is difficult to see given the material which was placed before me, upon what basis the trial was contested.

On 8 September 2003, L pleaded guilty to robbery in company. This offence took place on 27 November 2002 and whilst he was on bail for the earlier offence. The plea of guilty was entered on the day of trial, after it became apparent to him that his co-offender was about to give evidence against him. L gave a version of events to police about the incident which contained blatant falsehoods. This offence occurred at Bankstown Railway Station and involved threats of violence to the victim, who was substantially physically disabled having some years earlier been shot in the face and neck during a drive-by shooting. A sum of money and a mobile phone were then taken from him.

In this context, it is relevant to observe that the accused’s case is that it is a reasonable possibility that L was one of the gunmen. Both his reliability and his credibility would undoubtedly be subject to vigorous attack. The material to which I have just referred would tend to suggest that L is no stranger to violence. Moreover it would clearly be capable of affecting an assessment of his overall credibility.

16 It will be immediately apparent that some of these matters are of greater significance than others. None of them could, by themselves, be regarded as decisive. In fact I adverted to a number of them when I rejected the application which was made before the jury was empanelled. Of course those matters must now be re-evaluated in the light, not only of the fresh material that is now available, but also in the context of the overall Crown case as it has now emerged. I then had regard (as I do so now) to the relevant authorities which refer to the dangers associated with identification evidence and in particular to its seductive effect. See generally Alexander v The Queen (1981) 145 CLR 395; Domican v The Queen (1992) 173 CLR 556; Festa v The Queen (2001) 185 ALR 394. Not only does experience suggest that jurors may give such evidence more weight than is warranted, but also that such evidence is given by witnesses with greater assurance than the circumstances may justify. See R v Marshall (2000) 113 A Crim R 190. Furthermore I remind myself that in considering the possible application of ss 135 and 137 of the Evidence Act, I must have regard to the plain words of the sections and to the authorities which guide their interpretation. I must, for example, perform the weighing exercise which is mandated by s 137. See R v Blick (2000) 111 A Crim R 326. I need also to consider whether any such concerns as to the asserted frailties of the evidence as may be reasonably entertained, can be adequately met by giving appropriate warnings. In doing so, I must of course make an assessment of the cogency of the evidence in the overall context of the case. See R v Tugaga (1994) 74 A Crim R 190.

17 As McHugh J said in Festa:

In exercising the discretion to exclude positive identification evidence, the judge must take account of the risk that that evidence will be given greater weight than it deserves and will operate to the prejudice of the accused. In considering that risk, the judge must determine whether the Domican directions that will be given will be likely to overcome the prejudice that might ensue without those directions. If, despite those directions, the risk of prejudice remains and the evidence is weak, the proper exercise of the judicial discretion may require the exclusion of the evidence. (at 409)

18 As I have said, I have now had the very considerable advantage of hearing the Crown case. It is unnecessary to refer to it in any great detail. It is not without present significance however that, in addition to L, a number of witnesses who were called in the Crown case were quite capable upon the evidence, of having been one of the gunmen. Prominent amongst those persons were of course D and his brother, T. Notwithstanding their denials, it is clear from the evidence that each played a significant role in organising groups of their friends to attend the railway station in anticipation of a fight with Lebanese boys. It is apparent that they did so in retaliation for injuries which had been inflicted upon D earlier in the week.

19 Each of them pleaded guilty to an affray by reason of his participation in the fight. At their sentencing proceedings, the Crown specifically conceded that the basis upon which each of them did so was that he had nothing to do with the shooting. D nevertheless acknowledged that he could not explain the presence of gun shot residue upon the clothing he was wearing on the day of the incident. T’s DNA was located under the fingernails of the deceased. It was also located upon a bottle found at the scene of the shooting. His explanation for its presence there was implausible in the extreme. Each of them was arrested a few days after the incident as they attempted to board a flight to Vietnam.

20 The evidence of D and T was entirely unconvincing. The explanations which they gave as to why they were at Bankstown Railway Station on the day in question were patently false. The evidence of their own sister was at odds with their accounts. The jury would be well entitled to infer that they each had intimate knowledge of the circumstances of the shooting, and in all likelihood some degree of involvement in it. Intercepted material from internet chat lines between D and HN only serves to strengthen such an inference in respect of D. T’s denials as to his use of a mobile phone just before the incident, and the fact that he was wearing a cap with a logo which matched the description of the cap worn by the gunman given by an independent eyewitness, give rise to a similar inference in his case.

21 KN’s DNA was found on a broken bottle at the scene in circumstances which are entirely consistent, especially in view of the evidence of a number of independent eyewitnesses, with his having joined in the fight just before the fatal incident. He was totally unable to explain the presence of his DNA upon the bottle. Moreover he was in possession of the red Suzuki, which both parties accept was the “getaway car”. Immediately after the incident, an independent eyewitness observed two Asian males in it as it was driven away from the scene in an erratic manner. KN then arranged for the vehicle to be spray painted. Indeed he rang the spray painter on no fewer than four occasions on 19 February 2001, that being the next working day after the shooting. He also arranged for the ownership of the vehicle to be transferred to someone who knew nothing of the background of the use to which the car had been put. He told that person that “he [had] used it in a shooting” and that he was not to tell the police about it. That person, AD, initially invented a false story as to the circumstances in which he had acquired the car. He did so, he admitted, in order to protect KN. KN conceded that he had lied to the police and to the Crime Commission insofar as he had denied any involvement in the respraying. His evidence concerning the reason for, and the extent of his involvement in the respraying, was not only at odds with the other evidence on the issue, but utterly implausible on its face. The inescapable conclusion from the evidence and moreover the way in which the parties conducted the case, was that KN was very likely to have been intimately involved in this offence.

22 Before passing from KN’s evidence, it is worth recording his answers to some critical questions. When asked if he was one of the two Asian males in the Suzuki when it left the carpark at Bankstown on 16 February 2001, he replied “I don’t know”. When asked if it was a possibility he said “I don’t think so”. When it was put to him again later that he was in that vehicle with LD, he said “I can’t remember that”. Those answers could hardly be described as emphatic denials.

23 LD, who together with KN and the accused, was also a friend of T, having at one stage been his neighbour. Although he was unable when initially spoken to by police to recall his whereabouts on 16 February 2001, he gave evidence that he had indeed got involved in the fight. No doubt he gave that evidence because he knew that evidence from his sister, as well as from a doctor, placed him at Bankstown at the relevant time of the day in question. In addition, his DNA was located on a bottle at a table at the Gourmet Corner Café. He however denied being at the café and was unable to explain the presence of his DNA there. Having initially not been able to say how he left the scene, he later was able to recall that he had not been one of the two Asians who had departed in the red Suzuki. In all the circumstances, the jury may well have thought otherwise. His evidence was in any event, very difficult to accept. No better example of that fact can be provided than his evidence, that notwithstanding that he had told the Crime Commission that he had been stabbed during the course of the fight, he was unable to now recall whether he had in fact been stabbed or not.

24 NV maintained that although he had observed the fight, he had never got closer than 20 metres away from it. However, as was the case with his friend D, gunshot residue consistent with a .25 calibre cartridge case found at the scene, was located upon his clothing. He sought to provide an innocent explanation for its presence. His endeavour to suggest that it may have got there in an incident in a nightclub a month later was simply incredible. That was especially so as the first time he had been made aware of its presence on his clothing was 2½ years after the event when according to him, Detective Doueihi apparently informed him for the first time of that fact just before he gave evidence. Furthermore he agreed that he was wearing a baseball cap which has a very distinctive logo upon it. That logo was described by an eyewitness as being on the cap worn by the gunman. Intercepted internet chat line conversations between him and HN reveal that they were discussing the progress of the police investigation and were also rehearsing what version of events was to be provided by them to police. NV and various of his friends then proceeded to give evidence that was entirely consistent with those discussions. Furthermore, in order to allay suspicion of him, he also assisted his friend, KC by putting the latter’s jacket into the bag which he was carrying. KC, it might be noted, also bore some resemblance to descriptions of the gunman which were provided by some of the independent eyewitnesses.

25 It must be said that as a group, the men who were either friends of D or T were highly unsatisfactory witnesses. As I have suggested, it is clear that they all had their own ends to serve. Their evidence clearly reflected that fact. The Crown readily acknowledges that this body of evidence also raised, as I have indicated, the reasonable possibility that one or indeed more than one of them, was in fact responsible for the death of Omar El-Chami Batch.

26 What I have said in the foregoing analysis, makes it perfectly plain that the jury would have to be given a number of warnings in order to ensure that there was proper compliance with ss116 and 165 of the Evidence Act. The manner in which, and the sheer number and scope of the warnings which would be required, may well have the effect of leaving the jury with little room in which to move in terms of returning a verdict.

27 I have had particular regard to the cumulative effect of the combination of matters enumerated in paragraph 14 of these reasons. Having considered them in the overall context of the Crown case, and in particular the evidence concerning the other persons who may have had a significant involvement in this crime, I have arrived at the conclusion that the probative value of the identification is, in all the circumstances, extremely low. It is most unusual, in my experience, for a case to give rise to as many problems as exist here. The case represents, in my view, a text book example of identification evidence which is unreliable, or at the very least is capable of being so regarded. On the other hand, the unfair prejudice to which I have referred is substantial, especially when it is recalled that the identification evidence is pivotal to the Crown case. That being so, there can really be only one conclusion at which I can arrive. Because the probative value of the evidence is outweighed by its prejudicial effect, I am accordingly bound to exclude it and I do so.

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Last Modified: 12/03/2003