R v Peter Buchanan, Justin Robert Smith and Trevor Thomas

[2004] NSWSC 816

Reported Decision: 152 A Crim R 302

Supreme Court

CITATION:	R v Peter Buchanan, Justin Robert Smith and Trevor Thomas [2004] NSWSC 816
HEARING DATE(S):	09/08/2004
JUDGMENT DATE:	10 August 2004
JUDGMENT OF:	Buddin J
DECISION:	Application to exclude identification evidence refused.
LEGISLATION CITED:	Evidence Act
CASES CITED:	Domican v The Queen (1992) 173 CLR 555 Festa v The Queen (2001) 208 CLR 593 Papakosmas v R (1999) 196 CLR 297 R v BD (1997) 94 A Crim R 131 R v Blick (2000) 111 A Crim R 326 R v Carusi (1997) 92 A Crim R 52 R v Ford (NSWSC unreported 22/4/98) R v Jamal (2000) 116 A Crim R 45 R v Leroy and Graham [2000] NSWCCA 302 R v Tugaga (1994) 74 A Crim R 190
PARTIES :	Regina Peter Buchanan Justin Robert James Smith Trevor Anthony Thomas
FILE NUMBER(S):	SC 70054/03; 70235/03; 70236/03
COUNSEL:	B Smith (Crown) M Ramage QC (Buchanan) J Chicken (Smith) G Turnbull (Thomas)
SOLICITORS:	SE O'Connor (Crown) John Krajcik (Buchanan) Andrew Harris & Associates (Smith) Adamson Solicitors (Thomas)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

TUESDAY 10 AUGUST 2004

70054/03 – REGINA v PETER BUCHANAN
70235/03 – REGINA v JUSTIN ROBERT JAMES SMITH
70236/03 – REGINA v TREVOR ANTHONY THOMAS

JUDGMENT – Application by accused Trevor Anthony Thomas to exclude identification evidence

1 HIS HONOUR: Peter Buchanan, Trevor Thomas and Justin Smith are accused of the murder of Raymond Carrion on 5 July 1998. The alleged offence occurred in the shower block of Wing 12 of Long Bay Gaol. All three men were then inmates who were being housed in that part of the Gaol. The Crown case depends very largely upon the evidence of another inmate who was in Wing 12 at the time. For the purposes of these proceedings, that inmate has been given the pseudonym, Ronald Stuart.

2 Objection is taken by Mr Turnbull on behalf of the accused, Trevor Thomas, to evidence which the Crown seeks to lead from Ronald Stuart in which he purports to identify the accused as a participant in the murder of Mr Carrion. I have already ruled upon an objection raised by Mr Chicken, who appears on behalf of the accused, Smith. Although Mr Chicken took objection to the identification evidence which Stuart purports to give in relation to his client, the issues which he raised were somewhat different from those which are now raised. Neither Mr Chicken nor Mr Ramage QC, who appears on behalf of the accused Buchanan sought to make any submission on behalf of their clients in support of the current application. Each however reserved the right to make submissions in the event that I upheld Mr Turnbull’s objection. The accused have been arraigned and a jury has been empanelled but for reasons which are not presently relevant the evidence has not yet commenced.

3 It is necessary to briefly outline the case which the Crown seeks to lead against the accused. I have been provided with a copy of a document entitled “Crown Case Statement”. It is common ground that it sufficiently sets out, for present purposes at least, the evidence upon which the Crown relies.

On the afternoon of 5 July 1998 the deceased was showering alone in the shower block of 12 wing at the MMTC. Another inmate known to the deceased, Ronald Stuart (pseudonym), entered the showers and began to shower in the cubicle next to the deceased. About 5 minutes later the three accused entered the shower block. The shower block door was closed behind them. Stuart moved from the cubicles to the bath and began to dress. He heard a thud and saw the deceased fall front down to the floor. Buchanan dragged the deceased up against a wall and Thomas produced a “shiv” – a gaol term for a gaol-fashioned knife. It was a long sharp implement that looked like a screwdriver. He began to stab the deceased a number of times to the chest and to the head. Smith was standing near the door and appeared to be keeping a look out. Buchanan spoke to Stuart and said words to the effect of, “You didn’t see anything”. Stuart then left the shower block. A number of other prisoners entered the showers at this time. Stuart returned to the shower block a few minutes later to collect a pair of slippers he had left behind. He saw the deceased lying on his back in the bathtub section. He was convulsing and blood was coming from his mouth. Stuart again left the shower block and moved to the yard. He saw Buchanan in the yard. Buchanan apologised for having told Stuart earlier not to say anything. A short time later, prison guards were alerted to the deceased’s body lying on the floor of the shower block.
Following the murder, the inmates of 12-wing were locked in their cells for the following day and a half. Upon release from their cells, Stuart sought protection and was transferred to another gaol. In transit he provided a statement to police about the events he had witnessed in the shower block. Stuart was later shown a video containing the 194 prisoners present in 12-wing on the day of the murder. He selected the three accused as the three involved in the murder. Stuart’s evidence is corroborated to an extent by forensic evidence of a large concentration of blood spots at the wall area where Stuart said the deceased was stabbed by Thomas.
The Crown case against the three accused is one of joint criminal enterprise. It relies on the evidence of the informer witness, Stuart. Stuart provides direct evidence that it was Buchanan who dragged the deceased to the shower block wall and stood aside while Thomas stabbed him to the head and chest. Smith kept a lookout for anyone approaching. The Crown case is that the three accused embarked on a joint criminal enterprise to kill the deceased and that they are together criminally responsible for the act causing the death of Raymond Carrion with either an intention to kill or do grievous bodily harm or with a reckless indifference to human life.

4 This summary of the Crown case emerges from the statement of Ronald Stuart which was made on 8 July 1998, that is three days after Mr Carrion’s death. In his statement Stuart said that he had known Buchanan since Goulburn in 1996 and that he had known a man named “Uncle”, whom he subsequently ascertained was the accused Thomas, for “about two weeks, just around the gaol”. As to the “third guy”, that is the accused Smith, he said that he did not know his name “but I do know his face. I had been marking him earlier at football.” This was a reference to a game which had taken place only a relatively short period of time before the incident about which he gave evidence, had occurred.

5 Stuart provided the following descriptions of each of the three men. He described Buchanan as being around 25 years of age, 5’10” or 5’11”, tall solid build, brown skin and brown hair. He described Thomas as being around 30 or 32, short, very dark, medium to thin build with “kind of curly short hair”. He described the “third guy” as being 5’10” tall, medium build with curly short black hair. He then said that all three men were wearing prison greens and that he would recognise them if he saw them again. All three, he said, were aboriginal. Stuart said that he had been in the wing for about three weeks at the time.

6 On 24 July 1998, Stuart was shown a video containing photographs of all 194 inmates who were housed in Wing 12 on the relevant day. Having viewed the video, Stuart recorded his observations on a piece of paper. He told the police officer who conducted the video identification process, what he had recorded on the paper. His explanation was in these terms: “Number two is Peter Buchanan. Number eight, his name I don’t know. I have written beside number eight “Cocky” and not one hundred per cent sure because I think he looks a little bit different in the photo. I would know him face to face. Number sixteen is a guy by the name of “Uncle”. I think his correct name is Trevor Thomas”. He was asked why he had nominated those three men to which he replied “I believe they are the three in the shower at the time the incident occurred”. It is common ground that the photos which he selected were of Buchanan, Smith and Thomas respectively. Shortly after having seen the photographs depicting the accused, Stuart said “That’s all I want to see”. Nevertheless he was told by the police officer that he was obliged to continue looking at the photographs. He then proceeded to do so. However the video-machine malfunctioned during the course of the identification procedure on two separate occasions. On the first occasion the malfunction occurred after the video machine had reached photo numbered 48 and on the second occasion after it had reached photo numbered 51.

7 Buchanan and Thomas were subsequently spoken to by police. Each declined to be interviewed. The police also sought to interview the accused, Smith. He too declined to be formally interviewed. Nevertheless he did provide police with a signed statement in which set out his version of events. It is unnecessary for present purposes to refer to it in any detail. The full statement is set out in my judgment concerning the objection taken on his behalf by Mr Chicken. Suffice it to say that he said that although he had entered the shower block and had seen the deceased lying on the floor, he had no involvement in his death.

8 Mr Turnbull informed me that his objection could properly be determined upon the written material with which I have been provided. Accordingly I have not had the benefit of any oral evidence. That written material consists of the statements of Stuart, the procedure whereby he made his purported identification of the accused, the hand written statement of the accused Smith and statements of the prison officers who had a conversation with him shortly after the deceased’s body was located, together with various photographs. I have also viewed the video of the identification process.

9 The material has been supplemented with the transcript of the committal proceedings in which Stuart was cross-examined in some detail by each of the representatives who appeared on behalf of the three accused. It is conceded that whatever imperfections it may reveal about Stuart’s evidence, at no stage does he resile from his identification of each of the accused.

10 The evidence before me also includes a statement from the officer in charge of the investigation, Detective Bingham. Detective Bingham’s evidence was not the subject of any challenge. The relevant parts of his statement are set out below:

From the outset of the investigation it was obvious that the persons responsible for the death of Raymond Carrion were from inside the Gaol system. On the 6th July 1998 five inmates were to be brought to Maroubra Police Station for interview over the death, however one inmate, (Herman Smith) did not arrive due to court commitments elsewhere. These persons were transferred to the Station for interview on that day because they were seen by prison officers to be in or near the vicinity at the time the deceased was found.
One inmate, Justin Smith (who was later identified as a suspect) at the Police Station declined to be interviewed however he supplied police with a handwritten statement through his legal representative. At that time inmate Smith refused to answer any questions in relation to the death.
Over the next few days discussions were held in the Mascot Detectives Office and I inquired with a number of persons in relation to the plausibility (sic) of arranging an identification parade both in relation to inmate Justin Smith and other inmates if they were to be identified later.
In considering not to hold an identification parade I had read Section 114 of the Evidence Act 1995. I believed that it would have not been reasonable to hold an identification parade because there were 194 inmates in 12 wing at the time of the death. From previous knowledge of the Gaol system I was aware that inmates were often moved to other gaols often overnight and as such without having all inmates available it may have prejudiced any potential witness attempt to identify someone responsible for the death of Carrion.
I also believed that any potential witness would be easily identified to a given suspect as well as numerous other inmates during the conduct of any such identification parade. It would then make it impossible to protect that inmate from all other inmates for the rest of his sentence. I believed that the best way to have a fair representation of all possible suspects from within the Gaol system would be best achieved by the use of photographs or video of the entire 12-wing population.
To hold any identification parade external to the Gaol would have been impossible to arrange as there would be no way to safely move all the inmates. From previous dealings with the Gaol system and from the experience of other Police I felt that many inmates would not wish to be involved in any identification parade and as such would also not give a full representation of the inmate population.
On the 10th July 1998 arrangements were made to have a suspect video compiled that included all 12-wing inmates as of the 5th July 1998.

11 It may be accepted that the circumstances of the present case posed various difficulties so far as adopting an appropriate identification process was concerned. First, the offence was committed in gaol. Secondly, it occurred in a relatively confined area of the gaol. Thirdly, it was allegedly committed by inmates upon another inmate with the principal Crown witness being yet another inmate. (In those circumstances it is common ground that s 115 of the Evidence Act has no operation). Fourthly, the witness professes to know or at least to recognise each of the accused. Fifthly, the offence occurred in 1998 and it may be that there have been significant enhancements in the interim so far as the identification procedures that are now in use are concerned. Sixthly, it is particularly important that the investigation of a murder committed in gaol should proceed with some despatch in order to ensure that the proper and orderly administration of the prison system is not disrupted. Offences committed in gaol are also undoubtedly difficult to investigate given the understandable reluctance of inmates to co-operate with the authorities. It is against that background that the present argument needs to be considered.

12 The first challenge is based upon s 114 of the Evidence Act which is in the following terms:

(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.
(3) Without limiting the matters that may be taken into account by the court in determining whether it was reasonable to hold an identification parade, it is to take into account:
(a) the kind of offence, and the gravity of the offence, concerned, and
(b) the importance of the evidence, and
(c) the practicality of holding an identification parade having regard, among other things:
(i) if the defendant failed to cooperate in the conduct of the parade—to the manner and extent of, and the reason (if any) for, the failure, and
(ii) in any case—to whether the identification was made at or about the time of the commission of the offence, and
(d) the appropriateness of holding an identification parade having regard, among other things, to the relationship (if any) between the defendant and the person who made the identification.
(4) It is presumed that it would not have been reasonable to have held an identification parade if it would have been unfair to the defendant for such a parade to have been held.
(5) If:
(a) the defendant refused to take part in an identification parade unless a lawyer acting for the defendant, or another person chosen by the defendant, was present while it was being held, and
(b) there were, at the time when the parade was to have been conducted, reasonable grounds to believe that it was not reasonably practicable for such a lawyer or person to be present,
it is presumed that it would not have been reasonable to have held an identification parade at that time.
(6) In determining whether it was reasonable to have held an identification parade, the court is not to take into account the availability of pictures or photographs that could be used in making identifications.

13 As it is clear that no identification parade was conducted, the focus of the present challenge has been upon whether “it would not have been reasonable to have held such a parade” (s 114(2)(b). That of course brings into play the considerations which are set out in s 114(3). It is clear from its terms that ss(3) does not purport to set out an exhaustive list of matters that may relevantly bear upon the question at hand.

14 In considering that question the fact that the witness could, and presumably can, “recognise” the accused, is a matter that is not unimportant. As Odgers points out in his text Uniform Evidence Law (5th Ed, 2002) it is a consideration that may incline a court to conclude that it was reasonable, pursuant to s 114(3), not to conduct an identification parade (at 333).

15 The fact that a person knows or recognises another person has particular significance in a gaol setting. In R v Ford (NSWSC unreported 22/4/98), Barr J had to determine the admissibility of the evidence of two inmates who were eyewitnesses in a gaol murder case. Their evidence was that they had seen the accused around the gaol on a number of occasions prior to the fatal incident. They were each familiar with him but neither knew his name, although they were each able to subsequently ascertain it by making inquiries. No identification parade was conducted and nor was there any attempt to have the witnesses identify him from photographs.

16 Barr J declined to exclude the evidence. In doing so, his Honour relied in part upon the fact that it may have been impractical to conduct an identification parade, given the accused’s distinctive appearance. However his Honour also held that it was a relevant consideration that the witnesses were familiar with the accused. In that context his Honour said, in remarks that are apposite to the present case:

Prison is a dangerous environment. The safety of individual prisoners depends on their keeping an eye out for other prisoners. They have an important practical interest in knowing who their neighbours are. A casual encounter in a prison block or yard is not to be compared to a casual encounter between two strangers in a city street. The evidence shows that Mr Rees encountered the accused several times in such circumstances. Those encounters were likely to make the accused’s face familiar to Mr Rees. That would be the case, I think, with any prisoner, but the accused was not an ordinary prisoner because he had a quite distinctive facial appearance. (at 4)

17 In any event, it is unnecessary for present purposes to go any further than s 114(3)(d) of the Act. It provides that “the relationship..between the [accused] and the person who made the identification” is a relevant matter in determining whether it would not have been reasonable to have held an identification parade. In Ford, Barr J observed that “[t]he relationship was a contemporary relationship between two neighbours in a small, enclosed prison community. It had existed for a significant time.”

18 I have no doubt that the provision to which I have just referred, was intended to cover situations such as the present. Where the evidence is more in the nature of “recognition” evidence, then the usual concerns which attend identification evidence, whilst not being completely eliminated, may nonetheless assume less significance.

19 Mr Turnbull conceded that s 114(3)(d) also has relevance to another consideration, indeed one to which Detective Bingham specifically adverted in his statement. As Detective Bingham suggests, the conduct of the identification parade itself would have clearly revealed the identity of the potential witness. In those circumstances, it would have been extremely difficult to guarantee protection to the potential witness, given the widespread antipathy that exists within the system towards informers.

20 Mr Turnbull acknowledged the force of this consideration. He also expressly conceded that this one issue standing on its own could be determinative of the question of reasonableness in the present circumstances. Nonetheless his submission was that no identification parade was offered. He submitted that “protective devices like identification suits or disguise was not considered”. Of course there is no evidence as to what (if any) alternative means were considered in an effort to ensure that the safety and security of the identifying witness was not endangered by his participation in the identification process. I am, in any event, not persuaded that Mr Turnbull’s suggestion would have any great practical utility in a gaol setting.

21 Moreover, it was clear, even before Stuart provided his statement, that there were other inmates (that is in addition to the accused Smith) who were potential suspects. Those persons had been seen in the vicinity of the shower block when the deceased’s body was located by prison officers. To have excluded them from the identification process would not have facilitated the investigative process. It may have also been productive of other types of unfairness.

22 There were other considerations as well. Detective Bingham assumed, not without some justification, that other inmates would not wish to participate in an identification parade. That would of course reduce its usefulness particularly if other potential suspects were to refuse to participate in such a parade. Other practical problems presented themselves, including how a parade could be arranged to accommodate all the potential suspects.

23 Logistical difficulties were also considered to be relevant in R v Leroy and Graham [2000] NSWCCA 302. In that case either the potential suspects or the witnesses had to be moved from Penrith to Forster or vice-versa. The leading judgment in the case was delivered by Dunford J, with whom Stein JA and Simpson J agreed. His Honour said:

Apart from the logistical difficulties it would therefore have taken considerable time to arrange an identification parade and it was, in my view, clearly preferable to have the identifications done promptly, albeit from photos, whilst the images of those involved were more likely to be fresh in the minds of the identifying witnesses, than to wait some weeks for an identification parade by which time the witnesses’ memories of the images would probably not be so accurate. (at para 19)

24 A little later his Honour said:

..it must be borne in mind that the touchstone in s 114(2)(b) is whether it would not have been “reasonable”, not whether it would not have been “possible” to have held an identification parade. (at para 20)

25 His Honour’s remarks are, with respect, apposite to the present case.

26 In R v Jamal (2000) 116 A Crim R 45, it was held that the accused’s incarceration in a high security prison in New South Wales meant that it would not have been reasonable for the Australian Federal Police to have conducted an identification parade in the Australian Capital Territory which included him.

27 In determining this matter I have given specific consideration to each of the matters enumerated in s 114(3). There can be no doubting the gravity of the offence or the importance of the evidence. Indeed the Crown case is bound to fail without the evidence. For the foregoing reasons, it was not practical in my view to hold an identification parade and nor was it appropriate to do so given the relationship between the parties. In fairness to Mr Turnbull he did indicate that this aspect of his challenge was not agitated with any great vigour. In my view, that was an appropriate and realistic assessment of the situation. In all those circumstances I have concluded that “it would not have been reasonable to have held such a parade”. In doing so, I have had specific regard to the mandate contained in s 114(6).

28 The second basis for the present challenge arises by reason of what is said to be the unfairness of the array of photographs which were shown to the witness. It was submitted that the evidence should accordingly be excluded pursuant to s 135(a) and/or s 137 of the Evidence Act. It was also submitted that there was relevant impropriety within the meaning of s 138 of the Act.

29 It is conceded that the evidence is both relevant and probative and thus admissible. Nevertheless, it is submitted that its probative value is outweighed by the danger of unfair prejudice to the accused. That being so, it must be excluded. See R v Blick (2000) 111 A Crim R 326. In considering this application, I must have regard to the plain words of the various sections and of course to the authorities which guide their interpretation. I must, for example, perform the weighing exercise which is mandated by s 137. See Blick (supra).

30 In Festa v The Queen (2001) 208 CLR 593, Gleeson CJ said:

Questions as to the admissibility of evidence may be related to, but are different from, questions as to whether the totality of the evidence in a case is sufficient to sustain a jury’s verdict, or questions as to the warnings that need to be given to a jury about the use that may properly be made of the evidence. If evidence is of some, albeit slight, probative value, then it is admissible unless some principle of exclusion comes into play to justify withholding it from a jury’s consideration. It is not enough to say that it is “weak”, and, as already mentioned, whether it is weak might depend on what use is made of it. The totality of the evidence may be such as to render a conviction unsafe. But that does not affect admissibility. And the jury may need to be warned that evidence, if accepted, only shows consistency of appearance between the person and the offender; a fact which may or may not be of much significance depending upon other matters. Evidence of blood sampling may be relevant and admissible, for example, even though, standing alone, it only establishes that it is consistent with the accused being the offender. Evidence may show that an accused was near the scene of a crime. Such evidence, on its own, does not show that the accused committed the crime. That does not mean it is of no probative value; in the end, it will have to be considered together with all the other admissible evidence. (at para 14)

31 In the same case McHugh J said:

But the weakness of relevant evidence is not a ground for its exclusion. It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task. (at para 51)

32 In R v BD (1997) 94 A Crim R 131 Hunt CJ at CL said that evidence “may be unfairly prejudicial to a party if there is a real risk that the evidence will be misused by the jury in some unfair way” (at 139). See also Papakosmas v R (1999) 196 CLR 297 per McHugh J at paras 91, 98.

33 I have kept steadily at the forefront of my consideration of the submissions, the fact that these are well recognised dangers which are associated with identification evidence. See Domican v The Queen (1992) 173 CLR 555. It is also relevant to observe that the witness in the present case is a prison informer whose evidence is uncorroborated.

34 A number of particular submissions were advanced in support of the application. First, it was contended that the placing of the three accused in the first twenty photographs was inappropriate. It was submitted that “the grouping of all aborigines in the first twenty or so photographs skews the process towards assuming that race is the key identifier rather than what the perpetrator actually looked like”. Allied to this was a submission that “the grouping of the suspects at the start (with Buchanan being No 2 and the person whom Stuart seems to have known best) is biased in favour of detection. It raises expectations in the identifier that other suspect aborigines are within the first tranche of photos.” In my view, this submission is difficult to sustain in view of the exhortation given to the witness at the outset of the process that the perpetrator may not be in the array.

35 It was not unreasonable, in any event, to place all the aboriginal inmates at the beginning of the array given that Stuart maintained that each of the offenders was an aborigine. The ethnicity of the alleged offenders was an important component of the witness’ description, albeit not the only feature. The accused’s complaint may have assumed greater significance had the three accused been placed in positions 1 – 3. That of course did not happen.

36 Secondly, it is submitted that there was unfairness arising from what was said to be “the failure to group the array according to physical similarity”. True it is that no endeavour was made to place in the array aborigines who were not inmates at the time and in that sense the array did not have about it a component of randomness. As I indicated earlier this factor may not assume quite the same significance in a case in which the witness “recognises” the person or persons in question. In any event the real question to be considered is whether the array itself meets the appropriate standards that its purpose required. I have, as I said, viewed the array of photographs. It displays a number of aborigines and a considerable number of other men who are probably not aborigines but whose appearance is nonetheless not markedly different from them. By and large the aboriginal men are within a similar age bracket. For the most part, there is no indication of their height. One or two of the aborigines, it is true, have characteristics which distinguish them from the rest. That fact does not, in my view, detract from my overall impression that the array is not relevantly unfair and certainly not such as to reflect adversely upon its overall integrity. There is nothing about the appearance of any of the accused, when viewed in the context of the array, which suggested that any of them, stood out and thus invited an identification of them.

37 Thirdly, it is submitted said that the process of identification has been contaminated by reason of the fact that the witness had discussed the matter with other inmates. The evidence, for present purposes, only goes so far as to suggest that Stuart ascertained from making inquiries, that the name of the man whom he knew as “Uncle” was in fact Trevor Thomas. There is nothing in the evidence before me which suggests that there was, in the circumstances, any contamination of the process such as to render it unfair in any relevant respect.

38 Fourthly, complaint is made about the fact that the array was confined to inmates from Wing 12. It is submitted that the process then became one of elimination rather than of identification. In one sense, the presentation of an array with so many persons in it served only to assist the accused. Indeed to have included persons in the array who were not in Wing 12, may well have attracted criticism. It could then have been argued that those persons were obviously to be eliminated with the consequence that those remaining were more likely to attract attention than might otherwise be the case, particularly in circumstances in which the witness knows or recognises the suspects. There was also, in my view, some advantage, particularly given the somewhat limited pool of persons who could have committed this offence, in including within the array all those persons who may have been responsible, including of course those who had been identified from the outset by prison officers as potential suspects. In those circumstances, the identification process which was adopted may have had the advantage that it carried with it a measure of discernment on the part of the witness.

39 Fifthly, it is submitted that it was unfair to place the three accused in the one array. My attention in this respect was drawn to s 3ZP of the Crimes Act 1914 (Cth) which provides for a separate identification process for each suspect in the event that there is more than one suspect. The short answer to that proposition is that I am to apply the provisions of the Evidence Act of this State. It would have been a simple enough task for Parliament to have included such a provision were it thought to be necessary. It did not do so. I do not, in any event, discern that a failure to conduct separate arrays has occasioned any relevant unfairness to the accused in the particular circumstances of this case.

40 Nor am I persuaded that any of the other asserted deficiencies in the identification process, such as the failure to comprehensively and adequately record the procedure because of the malfunctioning of the machine, gives rise to any relevant unfairness.

41 Nevertheless I am prepared to accept that at least some of the matters which have been raised, may well give rise to entirely valid criticisms of the cogency and reliability of the impugned evidence. The question however is whether the asserted frailties can be overcome by appropriate directions of the kind contemplated in Domican and by s 116 of the Evidence Act. In R v Tugaga (1994) 74 A Crim R 190, Hunt CJ at CL (with whom Gleeson CJ and Abadee J agreed) said:

…in determining whether identification evidence should be left to the jury, the test is whether the quality of the evidence falls short of the point where its frailty or frailties cannot be cured by an appropriate caution to the jury. ……. I would not put it forward as the only test ….. When considering this question it must be kept in mind that the evidence should not be considered in isolation; what may appear to be poor in quality when taken by itself may gain strength when considered in the context of the evidence as a whole: cf Chamberlain (No 2) (1984) 153 CLR 521 at 535. (at 196)

42 In Festa (supra) McHugh J said:

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 para 65)

43 Mr Turnbull submitted that this was a case, given the importance of the evidence but its low probative value, in which a jury would give it “greater weight than it deserves”.

44 Having carefully considered the competing submissions, and having examined the nature and quality of the purported identification evidence as best I can upon the material before me, I can see no basis, pursuant to either s 135(a) and/or s 137 of the Act, upon which I should exclude it. It is implicit in what I have just said that I do not accept the submission that the evidence is of low probative value or that it is outweighed by the danger of unfair prejudice to the accused. Furthermore, in my view, appropriately crafted directions should ensure not only that the jury does not use the material in an impermissible fashion, but also that it is properly alerted to the inherent dangers that can arise from identification evidence.

45 In so concluding, I have not overlooked the significance which the evidence assumes in the Crown case. Nor have I overlooked the concerns which have been long expressed about the use of photo or picture identification. One, but only one, of the reasons which has given rise to those concerns is the fact that the accused has not been present at the time when the identification has been made and has thus not had the opportunity to test it. See for example R v Carusi (1997) 92 A Crim R 52. To that extent at least, such concerns may be allayed in cases, including the present, in which the identification process has been videotaped.

46 Mr Turnbull submitted that s 138 was also engaged in that the flaws which he asserted were apparent in the identification process suggested impropriety on the part of the investigating police. He did indicate that his submission in this respect may be regarded as being “overly optimistic”. I am unable to discern any such impropriety in the sense in which that expression has been interpreted. Even if there were, then having regard to those factors identified in s 138(3) which are relevant to the present case, I would conclude that “the desirability of admitting the evidence” would outweigh “the desirability of admitting evidence that has been obtained in the way in which the evidence has been obtained”.

47 For completeness, I note that a similar application was made before Kirby J. In that trial the jury was discharged without verdict, but not before his Honour declined to exclude the evidence which is the subject of the present application.

48 Given the stage of the proceedings at which this decision has been made, I make a non-publication order in respect of it, my reasons for so concluding and the discussion which preceded it.

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Last Modified: 09/06/2004