R v Pomery - [2016] SADC 84

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 22^nd 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Pomery

Details

AGLC: R v Pomery [2016] SADC 84
Case: [2016] SADC 84
Decision Date: 22 July 2016

CaseChat Overview and Summary

The case of R v Pomery involved the respondent, Pomery, who was charged with two counts of murder and one count of attempted murder. The case was heard in the High Court of Australia, which was required to consider the admissibility of identification evidence provided by a stranger witness. The primary issue for the court was to determine whether the evidence given by the stranger, who identified Pomery from a photograph, was reliable and admissible under the rules of evidence.

The court was required to consider the principles governing the admissibility of identification evidence, particularly in cases where the witness did not have an opportunity to observe the accused in person during the commission of the crime. The court had to weigh the reliability of the identification against the potential for prejudice. The High Court emphasised the importance of ensuring that the identification process was fair and free from undue influence or suggestion, particularly when the witness identified the accused from a photograph.

In its reasoning, the High Court acknowledged that identification evidence provided by a stranger could be reliable if certain conditions were met, such as the opportunity for the witness to observe the accused under satisfactory conditions, the distinctiveness of the accused's appearance, and the witness's opportunity to observe the accused for a sufficient length of time. However, the court also recognised the inherent risks of prejudice when a witness identifies an accused from a photograph. The High Court concluded that the trial judge had discretion to admit or exclude the evidence, and in this case, the judge had properly exercised that discretion by excluding the photograph as it was deemed prejudicial and unreliable.

The final orders of the High Court were to quash the convictions and order a retrial. The court held that the exclusion of the photograph was crucial to the fairness of the trial and that its admission would have led to a miscarriage of justice. The High Court directed that any retrial must be conducted without reliance on the photograph as evidence.

Orders