R v Pomery
[2016] SADC 84
•22 July 2016
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v POMERY
[2016] SADC 84
Reasons for Ruling of His Honour Judge McEwen
22 July 2016
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - PHOTOGRAPHS
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - IDENTIFICATION BY STRANGER
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - PREJUDICIAL EVIDENCE
FACEBOOK IDENTIFICATION
Application for exclusion of evidence of identification as accused by recognition of photograph on Facebook profile.
Held: Evidence excluded in exercise of discretion, for unfairness.
Criminal Law Consolidation Act 1935 s 24 (1), referred to.
R v Kearney (2013) 118 SASR 335 ; Straus v Police (2013) 115 SASR 90, considered.
R v POMERY
[2016] SADC 84
Following a voir dire hearing in this matter, I excluded the identification evidence of witness KB. These are my brief reasons for that ruling.
Emilio James Pomery was charged as follows:
Aggravated Causing Harm with Intent to Cause Harm. (Section 24(1) of the Criminal Law Consolidation Act, (SA) 1935).
Emilio James Pomery on the 22nd day of January 2014 at Elizabeth Grove caused harm to Paxton Wiggins, intending to cause him harm. It is further alleged that Emilio James Pomery used an offensive weapon, namely a crow bar, when committing the offence
The charge arose out of an alleged incident outside a party at Elizabeth Grove on 21 January 2014. According to the declarations and the voir dire evidence, the victim Paxton Wiggins was struck to the head with a crow bar and/or machete. The primary issue at trial was the identity of his assailant.
The prosecution case involved the following items of evidence:
·A positive identification of Emilio Pomery, by KB, from a Facebook photograph.
·A subsequent photo identification procedure during which KB selected the photograph of Pomery as ‘that looks like the guy’.
·A Facebook photograph identification by witness Craig Wilson, of Pomery being a person at the party.
·Three other witnesses indicating (by Facebook and/or photographic array) Pomery as a person who resembled, looked most like, or is similar to the assailant.
It can readily be seen that the evidence of KB, of her initial Facebook identification, was critical to the prosecution case. The other items of evidence were capable of lending support to her identification of the accused. However, in themselves, they were not capable of supporting a conviction of the accused.
KB’s purported recognition of Pomery as the assailant was, shortly after the incident by viewing photos on Pomery’s Facebook profile; having been directed to that Facebook profile by someone.
That in itself would not stand in the way of her identification evidence going before the jury. There are a number of authorities which recognise the admissibility of ‘Facebook identifications’, or identifications where a witness has recognised a perpetrator from the internet; a newspaper article; or some other individual depiction of the person. Recent Facebook identification cases include Strauss[1] and Kearney[2].
[1] Straus v Police (2013) 115 SASR 90.
[2] R v Kearney (2013) 118 SASR 335.
Cases of this nature tend to include the following features to varying degrees:
·The photograph is not selected from a carefully prepared array of photographs that are all fairly similar, and consistent with whatever description the witness has given. Rather, they tend to be single photographs, or photographs of the relevant person with friends or associates who are not of similar appearance;
·These identifications do not occur under controlled conditions and with an incontrovertible record of what occurred; as distinct from a police photograph array procedure, which is recorded;
·These identifications often take place before the witness has committed to a description of the perpetrator;
·These identifications often carry with them a degree of suggestibility or expectation that the perpetrator will be depicted in the image viewed.
The extent to which one or more of these issues features in an identification, will vary from case to case. The circumstances in which the witness purports to recognise the perpetrator, are crucial to the exercise of the discretion of whether or not to exclude the evidence; and to the extent of the warning that the trial judge will need to give to the jury.
There are additional aspects of this matter which distinguish it from the routine Facebook (or similar) identifications seen in the authorities.
Firstly there were significant uncertainties and contradictions on KB’s evidence as to the occasion, or occasions, which constitute the act, or acts, of recognition of the perpetrator.[3] In her evidence KB initially described an occasion the morning after the party when there was a conversation on Facebook and she then accessed Emilio Pomery’s profile and recognised his photograph as being the perpetrator:[4]
QThe assault is said to have happened at about 1.a.m. on 22 January 2014
AYep.
QHow soon after you got home did you have a look at Facebook.
AIt was a while ago, thinking back, it was a couple of hours maybe, one or two, I can’t be sure as I was trying to relive the situation to my dad. I wasn’t aware of the time.
[3] Using the word ‘recognition’ in the sense of the witness recognising the photograph as depicting the perpetrator who they had only seen on the relevant occasion; not recognising someone they know.
[4] T 54 and T 60-61.
She said the second time she looked at the Emilio Pomery profile was:[5]
[5] T 58.
AWhen I got given the name and I showed my father so that was a day or so after the first time.
QSo can I just confirm what you are saying. Have you only looked at the Emilio Pomery profile twice.
ACorrect.
QThe first was the morning after the party.
ACorrect
QAnd the second was a couple of days after that.
ACorrect
QIs that right?
AYes.
It is difficult to reconcile those descriptions of the two occasions. If the second occasion was ‘when I got given the name’, how can she have had the name and accessed the profile on the first occasion? Of course, it is not my function to weigh her evidence, and assess her credibility. But I need to know what I am being asked to leave to the jury; and what it is I would need to direct the jury about.
The dilemma deepens. KB’s declaration to police dated 16 March 2014 includes the following: [6]
About a week or two later I was speaking to Paxton on Facebook about how he was doing. I asked him who had assaulted him and he told me a name. I can’t remember the name now but when he told me I looked at this person’s Facebook page straight away to see if it was him. I recognised the profile picture of this person’s Facebook page as the same person who had been harassing me at the party and who had the crowbar when he got out of the car.
[6] Declaration of KB, 16.03.2014.
KB’s declaration to police dated 2 August 2015 included the following:[7]
On the 24th January, 2014 I received a text message to my phone from a friend who asked if Emilio Pomery was the person who assaulted Paxton. I don’t recall who the friend was who sent the message. I didn’t know the name Emilio Pomery so I searched the name in Facebook. There were a lot of Emilio Pomery names that came up. I went into the first Emilio Pomery profile and immediately recognised him as the person who had been harassing me and Ashlee at the party, as the passenger in the vehicle who followed us down the road and as the person who chased us with the crowbar and machete.
[7] Declaration of KB, 02.08.2015.
It can be seen that KB’s evidence of the relevant act of recognition is moveable and contradictory. It amounts to at least three occasions: the morning of 22 January 2014; 24 January 2014; about two weeks after the party. Each of these purport to be the first time she was given his name; and immediately recognised him as the perpetrator as soon as she saw his photo.
The second, and related difficulty is the information she was supplied with immediately prior to looking at the Facebook profile; and from whom it was supplied. This also entails a number of different versions. These include:[8]
AI’m – it was a male. I’m trying to remember the name because I don’t want to name anyone incorrectly but it was someone from the party who I wasn’t friends with, I was just acquainted with, that knew I was involved in the incident and had messaged me to find out if Paxton was okay.
QAre you able to tell us that person’s name.
AI can’t remember. I would – if I remembered, I would, but all I can remember is they were curious about Paxton’s wellbeing.
[8] T 54-55.
This person told her ‘I know who did it but I can’t say’ then gave her the name Emilio Pomery. This person, she told the court, could not have been Paxton because they were enquiring about Paxton’s wellbeing.
As noted above, in one of her police statements she attributed the source of the first mention of Emilio Pomery’s name to Paxton Wiggins.
In her evidence on the voir dire:[9]
A.. But Paxton wasn’t the first person to tell me Emilio’s name or bring up Emilio.
QBut you can’t tell us who was or who did I should say.
ASomeone random person from the party. There was a lot of kids there. There was about 200 people. Everyone knew about the fight within an hour of it happening but, no, I’m trying to remember. I even searched through Facebook for messages. It turns out it was on my old Facebook account but I can obviously remember the conversation briefly and I doubt Paxton is going to message me asking about himself.
[9] T 89.
As well as uncertainty about the source, there is uncertainty about the amount of information provided to her, immediately before she accessed the Facebook profile.
The passage quoted above has the source telling her he knows who did it but can’t say, then giving her the name.
Her evidence was that it was ‘a he said she said conversation’. The person told her they had been told who the assailant was:[10]
ANot that I can recall but I received multiple messages and text messages from a bunch of people asking – questioning me about the incident and questioning me about Paxton’s injuries and questioning me about everything. It was overwhelming.
[10] T 78.
The uncertainties and contradictions entailed in her evidence about the act or acts of recognition have the potential to mislead the jury; or to make it very difficult to properly assess the weight of her evidence as to the recognition. Moreover, it is impossible to formulate appropriate directions, tailored to the specific circumstances of the act of recognition; when the witness is unable to herself specify the occasion and scenario of the act of recognition. To cover all the permutations here, would be an incomprehensible array of alternate directions, depending upon which factual circumstance the jury was considering. Moreover it would inevitably involve potential speculation by the jury around the degree of suggestibility; and the credibility she may have attached to the source, whoever that was.
In that respect, the factual circumstances of this matter are distinguishable from Kearney, where it was considered significant that the circumstances of the witness viewing the photographs were much less suggestible:[11]
It could be inferred that she produced the photograph to Ms Harrison as being a photograph of a potential candidate for the second assailant, but no more than that. Consequently, there could be no suggestion that Ms Harrison would infer from the very production of the photo to her that Ms Harris had any particular knowledge of the identity of the second assailant.
[11] R v Kearney (2013) 118 SASR 335 at [29].
And as for the second witness in Kearney:[12]
As he told the jury, his mother had shown him some 50 or so photographs which she had found on Facebook who were, presumably, connected in some way with the first assailant, Sanderson. Mr Robertson had not identified any of those persons. In a sense, this was just another photograph. If Mr Robertson’s statement that he did not open the message until after he opened the attachment was accepted, then there is no element of suggestibility about this process. Rather, to him, it would have been just another photograph of someone who — for reasons not known to him — might be thought to be a candidate.
[12] R v Kearney (2013) 118 SASR 335 at [30].
In this case there was that suggestibility; the name or link was presented along with information that it was the perpetrator. Moreover, as we do not know the source or the content it is impossible to assess; or to test; or to direct upon; just how suggestible the circumstances were. Indeed, it appears that KB herself no longer knows this.
The combination of those difficulties, regarding the critical issue of the initial act of recognition, in my view made this a plain case for the exercise of the discretion to exclude the evidence, to avoid unfairness to the accused. It follows from what I have said, that this ruling turns upon the matrix of factual circumstances, surrounding the act of recognition, and the risk of unfairness, which could not be obviated by directions.
It was for those reasons that I excluded the identification evidence of KB.
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