R v Ross (No. 3)

[2020] NSWDC 196

District Court

New South Wales

Medium Neutral Citation:	R v Ross (No. 3) [2020] NSWDC 196
Hearing dates:	27-28 April 2020
Date of orders:	28 April 2020
Decision date:	28 April 2020
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 51
Catchwords:	EVIDENCE – criminal proceeding – picture identification evidence – whether evidence said to constitute ‘recognition evidence’ – photoboard identification process conducted 2 years after alleged incident giving rise to charges – assault victim identified the accused – whether not reasonable to have conducted identification parade – whether victim’s identification of the accused influenced by later encounter between them – whether recognition evidence should be excluded in Court’s discretion
Legislation Cited:	Evidence Act 1995 (NSW), ss 114, 115, 116, 135, 137
Cases Cited:	Gardiner v R (2006) 162 A Crim R 233 IMM v The Queen (2016) 90 ALJR 529 Pace v The Queen (2014) 247 A Crim R 1 R v Batty (NSWCCA, 6 August 1997, unreported) R v Buchanan (2004) 152 A Crim R 302 R v Ford [1998] NSWSC 96 R v Taufua (unreported, NSWCCA, 11 November 1996) Smith v The Queen (2001) 206 CLR 650 Trudgett v R (2008) 70 NSWLR 696
Texts Cited:	Criminal Practice and Procedure NSW (looseleaf, Lexis Nexis) Cross on Evidence (electronic version, Lexis Nexis) Odgers, Uniform Evidence Law, 14th ed, Thomson Reuters
Category:	Procedural and other rulings
Parties:	Director of Public Prosecutions Mr DM Ross
Representation:	Counsel: Mr K Gilson for the Director of Public Prosecutions Mr J O’Sullivan for the accused   Solicitors: Solicitor for the Director of Public Prosecutions Conditsis Lawyers for the accused
File Number(s):	2018/148887
Publication restriction:	Nil

Judgment

BACKGROUND

1. The accused objects to evidence which the Crown proposes to adduce, concerning ‘recognition evidence’. By ‘recognition evidence’, I mean evidence from an identifying witness seeing someone they already know; as distinct from evidence that a witness observed a person presently unknown to them who is the defendant[1] . The form of the evidence objected to is identification by photoboard, which process was undertaken at Hornsby Police Station yesterday morning, being the scheduled date for commencement of the trial.

   1. Gardiner v R (2006) 162 A Crim R 233 at [68].

2. As I noted in my reasons for judgment yesterday, when granting leave to the Crown to amend to add a further alternative charge on the indictment, the Crown’s case is that on 19 April 2018, a group of people, including the accused, set upon the victim, causing him a range of injuries. Relevantly for the present context, the Crown anticipates that the victim will give evidence that the accused was one member of the group involved in the attack. I am told that the Crown proposes to rely upon other circumstantial evidence, including evidence from another witness (Mr Tomlinson) to the effect that the accused was seen leaving his house in a white station wagon; that the car disgorged other members of the group prior to the assault on the victim.

3. The photoboard process involved the officer involved in the investigation, Senior Constable Bartley, taking the victim through an array of photographs; taking him though something of a script (Exhibit 4) containing certain standard warnings to the identifying witness about some matters (including that he should not assume that any of the photographed persons are in custody, or have any criminal record); and enabling the witness to try to identify, if he could, which, if any, of the persons in the photographs, were involved in the attack. Out of this process, the victim identified the accused’s photograph from the photo parade. Counsel for the accused took no objection on the basis of the integrity of the process.

4. It was common ground that the ‘recognition evidence’ which the Crown seeks to have admitted is a form of ‘identification evidence’ as that expression is defined in Part 1 of the Dictionary to the Evidence Act1995 (NSW) (‘the Act’): Trudgett v R (2008) 70 NSWLR 696. In particular, it is a form of ‘picture identification evidence’ as that expression is defined in s 115(1) of the Act. The language and structure of that provision indicates that the legislative intention is to prohibit certain categories of such evidence; subject to certain exceptions. The relevant category of prohibition in this case was that the accused was in police custody when the photograph was taken.

5. Further, the structure of the Act, including the interaction between the discretionary factors in s 114(3) with s 115(5), is consistent with the common law’s preference for identification parades as the preferred mode of identification; and that evidence of photographic identification should only be led where it is unavoidable and where the identification parade is not practicable. It has been said that in the absence of explanation for the failure to hold an identification parade, there is discretion to exclude identification evidence [2] .

   2. Cross on Evidence (electronic version, Lexis Nexis) [1380], [1420].

EVIDENCE ON THE VOIR DIRE

6. In determining whether the objection should be upheld, Mr Crown and Counsel for the accused consented to the Court viewing a DVD which set out the photoboard parade process. That evidence, in conjunction with copies of the photographs depicted in the photoboard, was admitted on the voir dire. The victim also gave evidence on the voir dire and was cross-examined.

7. The victim said that he had known the accused for about 6 weeks before the alleged assault. The first time he had met the accused was at a pub in Wyong. The victim recalled meeting and speaking with the accused for about 10 minutes. The victim did not recall drinking on that occasion. As I understood his evidence, the purpose of the meeting was that the accused wanted to meet the victim to clarify whether something had been said by the other. At any rate, the victim recalled that the meeting ended with him being on good terms with the accused.

8. The victim said that after the pub meeting, he visited the accused’s house in Casey Drive, Watanobbi on 3 or 4 occasions prior to the assault. The victim identified a photograph of the house which was admitted on the voir dire without objection (Exhibit 3). Under cross-examination, the victim described features of the inside of the home. The first time, the victim recalled, was in the company of the victim’s uncle, Mr Michael Madigan. This first meeting at the accused’s house lasted half an hour. The victim recalled that the purpose was for him to catch up with the accused; and he recalled meeting the accused’s wife and two children. The victim recalled seeing the accused’s purple-coloured SRG Falcon in a garage.

9. The victim could not recall, or was not asked about, further details of the other visits to the accused’s home.

10. On the day before the alleged assault, the victim recalled being present at the place of a friend, Ms Robyn Pollock. He recalled hearing, on speaker phone, a telephone conversation between Ms Pollock and a person whose voice the victim recognised as that of the accused. The victim heard the accused say that he and some of ‘the boys’ were going to get him.

11. The victim gave evidence that in December 2019, he understood that he was required to give evidence for the Crown. He received a subpoena to give evidence but did not comply with it. He was arrested and detained in Gosford Court cells until a Judge heard an application for a grant of bail. He estimated being in custody for about 6 hours. He was placed in a cell by himself, although he was moved around several times. He was dressed in a suit.

12. Materially, the victim recalled seeing the accused pass by his cell. The accused was on the way back to the cells after coming from Court. The victim said he saw the accused raised his hand in a ‘fist pump’. The victim mentioned to the accused that the victim had been arrested. He said he interpreted the accused’s gesture as amounting to a request for an indication as to whether the victim was intending to give evidence against him.

13. In cross-examination, the victim said that the meeting at the pub was by arrangement. It was put to him, and the victim disputed, that the victim did not speak to the accused on that occasion.

14. In cross-examination, the victim accepted that when he gave evidence of his first visit to the accused’s house, prior to the incident, he had erroneously stated that he did so in the company of another Michael, Michael Rossiter, rather than Michael Madigan. It was put to the victim, and the victim denied, that there was only the single occasion when he had visited the accused’s house, and then only for the limited purpose of the victim requesting that he use the toilet. The victim gave evidence to suggest he recalled certain features of the accused’s home. The victim was asked whether the reason for seeing him at the accused’s home for the first time was about drugs. The victim said it was about organising a game of golf.

15. The victim accepted in cross-examination that at the time of the photoboard, he had not disclosed his encounter with the accused in the cells in December 2019. This was so notwithstanding that he knew that the accused was likely to be down there. The victim said he accepted that he may have anticipated that the accused was likely to be there, but said that, so far as he recalls, he may have anticipated that the accused would give evidence by audio-visual link. It was put to the victim, and the victim rejected the proposition that, whilst in the cells, he was on the lookout for people and intending to ensure he had identified the right person. It was also suggested that he and the accused had a ‘jail handshake’. That proposition was also disputed.

16. It was put that the non-disclosure by the victim to Senior Constable Bartley during the photoboard was deliberate. The victim denied this.

17. Aside from the encounter in the cells, the victim said he had not seen the accused since the assault, until giving evidence today.

THE DVD RECORDING OF THE PHOTOBOARD

18. The Crown accepted that the Computer Photographic Identification Form (Exhibit 4) was not a complete transcript of all that was said between the victim and Senior Constable Bartley. But he submitted, and I accept, that insofar as the procedure was concerned, and to the extent that it involved Senior Constable Bartley administering certain warnings or cautions, the procedure was complied with. As indicated, Counsel for the accused took no issue with the integrity of the procedure that was followed.

19. The DVD recording showed that the process of identification of the array of photographs was over in a matter of minutes. The victim quickly passed over photographs 1 – 9 (incl.) in the photoboard before striking photo 10. Without hesitation, he selected that photograph as depicting the person he said assaulted him. Photo 10 was a photo identification of the accused. He thereafter passed quickly over the balance of the photographs in the array. The victim identified the accused by his name.

THE ACCUSED’S OBJECTIONS

20. The accused’s objection was threefold, which I will deal with sequentially under the provisions of the Act. First, he submitted that the evidence falls foul of s 115(2). That is a prohibition upon admissibility where the picture identification evidence, being the photoboard parade, suggested that they were pictures of people ‘in police custody’. The accused submitted that the photograph taken of the accused was not good; that he was wearing the type of top that an in-mate would wear and the colour of the top was dark – perhaps black or dark green.

21. Secondly, and alternatively, the prohibition in s 115(5) was prima facie enlivened – when the photographs were taken, the accused was under the custody of a police officer of the police force investigating the commission of the offence with which the accused has been charged.

22. Counsel for the accused submitted that the Crown could not prove the applicability of the exception in s 115(5)(c), that it would not have been reasonable to have held an identification parade which included the accused. The Crown did not contend that any of the other exceptions in s 115(5)(a) or (b) were applicable.

23. To determine whether the Crown could make out the exception in s 115(5)(c), the Court’s attention was, as stipulated by s 115(6), directed to the non-exhaustive list of considerations appearing in s 114(3) of the Act [3] . Counsel for the accused referred to the circumstances where at least two weeks ago (during the midst of the COVID-19 pandemic), the accused had consented to partaking in an ‘identification parade’; the photographic evidence that the Crown now seeks to rely upon was taken over 2 years after the incident in question (a matter also relied upon for the third basis of the objection). The accused had not been invited to participate in an identification parade in the 2 years which have ensued since the incident occurred. If a process of identification was to be undertaken – whether by way of identification parade or photoboard parade – the accused should have been asked to participate in such process well before now. The inconvenience and impracticality of conducting an identification parade in the current COVID-19 pandemic has to be seen in perspective of an unexplained resort to the process in most of the period over the last 2 years. This matter is also relied upon in the third basis of the objection below.

    3. For the purposes of s 114(2)(b), the Court is not to take into account the availability of photographic identification (s 114(6)).

24. Counsel for the accused also put before the Court some documentary evidence regarding an encounter on 4 December 2019 whilst both the victim and the accused were in the Gosford Court cells. In a covering email of 11 February 2020, the senior correctional officer indicated that he had told the accused’s solicitor that there were three times during a 4 hour time frame when the accused and the victim passed each other (both of them being in separate cells) for a total period of 30 seconds. It was said that it must have been evident that the victim would know that the accused was likely to be one of the accused to go to trial. It has been said that a very long time gap between the commission of the offence and the act of identification bears upon the practicality of having an identification parade and the reasonableness in doing so (Odgers, Uniform Evidence Law, 14th ed Thomson Reuters, [EA 114.180, p 924]).

25. Thirdly, and as indicated, if the Court was disposed to admit the evidence as an exception under s 115, the Court should exercise one or both of its discretions to exclude under ss 135 or 137 of the Act. This objection was elaborated after the DVD recording of the photoboard was played and after the victim had given evidence. Counsel submitted that there was a risk that during the photoboard, the victim had identified the defendant as the person who he saw in the cells in December 2019, rather than the person who was part of a group of people who assaulted him in April 2018. The unfair prejudice was identified as the potential unreliability of identification by photoboard by reason of that encounter in December 2019.

THE CROWN’S SUBMISSIONS

26. The Crown submitted that if the evidence indicated that the victim had a good familiarity with the accused before the incident in question, it would not be objectionable if he gave evidence recognising him in a photograph taken of the accused two years after the incident.

27. In response to the objection under s 115(2), the Crown contended that virtually all of the persons in the photographs were wearing similar coloured, or ‘stock standard’ tops. He said that there was a good array of ‘suspects’ when considering the length of hair and the tattoos on a handful of the suspects. I note there are a number of tattoos on the neck of the accused.

28. Mr Crown submitted that the Crown has demonstrated that since the incident, it would not have been reasonable to have an identification parade that included the accused. Plainly, in the last 5 weeks or so, there has been the COVID-19 pandemic and the public health restrictions imposed by different levels of government. The accused could not have been taken out of custody to arrange such parade. On the question of practicality, however, Mr Crown candidly acknowledged that the Crown had taken the forensic view that an identification parade should not be undertaken because of the prior relationship, or association, between victim and accused; and not because of any real impracticality. In other words, the Crown’s view was that it was unreasonable to have an identification parade at any time.

29. Insofar as the s 114(3) criteria are concerned, Mr Crown noted that the offence the subject of the primary charge was very grave, but later he accepted that this consideration was not very material to the question. He argued that the importance of the evidence was that it was part of the Crown’s circumstantial case in identifying the accused’s involvement. The photographic evidence supplemented, for example, the evidence of another Crown witness which saw the use of the accused’s car offloading other group members shortly before the incident.

30. Although the Crown acknowledged that there was force in the accused’s submission concerning the 2 year interval between the incident and the photoboard evidence, he submitted that the force of the submission was somewhat diluted, having regard to what the Crown anticipates will be the victim’s recognition of the accused at the scene of the incident and his evidence of knowing him before the assault.

31. The critical consideration under s 114(3) was the prior relationship between victim and the accused. Mr Crown emphasised that the victim, whilst cross-examined on the voir dire, was not really challenged on some of the matters betokening the victim’s familiarity with the accused prior to the assault, including his knowing the accused for 6 weeks prior to the incident; his meeting him at the pub; his meeting him at the accused’s home; and his identification of the accused’s car.

32. As to whether the Court should exercise discretion to exclude the photoboard evidence under ss 135 or 137 of the Act, Mr Crown addressed the encounter of December 2019. He submitted that if the accused and victim were complete strangers, then he would have agreed with the accused’s apprehension of a risk of misidentification during the photoboard. But that was not this case. Mr Crown generally submitted that there was some probative weight to the evidence: it might enhance the victim’s credibility in identifying the accused’s presence at the scene where the assault took place. Indeed, the evidence of the chance encounter in December 2019 was part of a series of occasions where the victim had identified the accused. If the victim was wrong about the identification of the accused in April 2018, he may also be wrong on other occasions he identified the accused. On the other hand, in a judge alone trial, there was little risk of unfair prejudice in the misuse of the evidence which could not be mitigated with my giving myself appropriate warnings (as requested) or directions.

CONSIDERATION

33. As to the objection taken under s 115(2), it has been said that the appropriate test is to consider the photographs without regard to the context in which they were viewed or examined by the identifying witness (R v Batty (NSWCCA, 6 August 1997, unreported), cited in Criminal Practice and Procedure NSW (looseleaf, Lexis Nexis) [3-s 115.1], p 52,605). For the accused to make good this objection, he must point to something in the nature of the photographs which might create the impression in the mind that they are of persons in police custody[4] .

    4. Pace v The Queen (2014) 247 A Crim R 1 at [23].

34. With the benefit of having seen a DVD reproduction of the photoboard, and viewing the photographs (Exhibit 1), to my observation there were no factors suggesting that the persons depicted were in police custody. Contrary to the submissions of the accused, the persons were not, for example, in the garb associated with custody. This objection was but faintly pressed and I reject it.

33. As to s 115(5), there was no point taken disputing that the accused was in the custody of a police officer of the police force investigating the commission of the offence with which the accused had been charged at the time of the photoboard; or that the photographs were kept or not kept for the use of police officers.

34. In respect to the criteria set out in s 114(3), I find that there was no impracticality in conducting an identification parade within the two years that have lapsed since the assault (per s 114(3)(c)). There was no suggestion that the accused would have refused such parade or was otherwise uncooperative. This militates against allowing admission of the photograph by photoboard. Little attention was given by the parties to the criteria in s 114(3)(a) and (b) and I find that these criteria are to be neutrally assessed on the determination.

35. The most contentious criteria in this context is in s 114(3)(d). There are cases which suggest that the circumstance that the identifying witness ‘recognised’ the accused has led to the conclusion that it would not have been reasonable to have held an identification parade (R v Ford [1998] NSWSC 96; R v Buchanan (2004) 152 A Crim R 302 and the balance of commentary in Odgers, Uniform Evidence Law (14th ed, Thomson Reuters), [EA 114.180], p 922. But as was noted by Barr J in R v Taufua (unreported, NSWCCA, 11 November 1996) much depends on the degree of the familiarity that the identifying witness had with the suspect, the period of time that had lapsed since the incident and the extent to which, if at all, the accused’s appearance had materially changed.

36. In this regard, I am mindful that, save for the encounter in December 2019, there was a two year gap in contact between victim and accused. It was not suggested to the victim in cross-examination that in that period, the accused’s appearance had altered to any material effect.

37. Nevertheless, I generally accept that the net effect of the evidence on the voir dire is to show that there was a not insignificant degree of familiarity between victim and accused prior to the assault such that, in considering whether it was reasonable for the police to conduct an identification parade, the police could legitimately, or reasonably, come to the view that such parade was not reasonable in the particular circumstances. In this respect, on such application, in my view it is reasonable to take the Crown case at its highest, including my acceptance, for present purposes, of what the victim said. Particularly, that is so where his evidence was unchallenged, but even where it was challenged. That being so, I find, for the purposes of this application, that the victim had multiple contacts with the accused in a period proximate to the assault, extending even to multiple visits to the accused’s home and meeting his family. They had contact (whether it be social or for business purposes) at a pub. At the time of the assault, the victim knew the accused. They were not strangers.

38. I find that the Crown has established that it was not reasonable to have held an identification parade. Accordingly, the accused’s objection under s 115(5) is rejected.

39. On the question of discretion to exclude ‘photoboard evidence’ under ss 135 or 137 of the Act, as a starting point, the Court must proceed on the assumption that the evidence is accepted, albeit that the consequences of that assumption may be limited: IMM v The Queen (2016) 90 ALJR 529 at [50]. In the context of discretion to exclude, there are two matters to consider. First, evidence of the identification by the photoboard may be relevant to the credibility of the identifying witness’ belief; but secondly, the evidence may be unreliable, or of low probative value, because of the circumstances surrounding the evidence.

40. In my opinion, the circumstance that the victim recognised the accused during the photoboard process may rationally be said to enhance the credibility of his evidence identifying the accused as part of the group during the assault.

41. ‘Recognition’ evidence is generally taken to have higher probative value and yield less danger of unfair prejudice [5] . Mr Crown referred me to the decision of the Court of Criminal Appeal in Gardiner v R (2006) 162 A Crim R 233; where it was said that although recognition evidence falls under the category of identification evidence, the content of any direction under s 116 may be more significantly confined. I took Mr Crown to submit that by parity of reasoning so must the danger of unfair prejudice outweighing probative value be reduced when a Court is concerned with ‘recognition evidence’.

    5. Odgers, Uniform Evidence Law (14th ed, Thomson Reuters), [EA.114.240], pp 926-7, fn 225.

42. An important consideration when considering both the probative value of the identification evidence and the danger of unfair prejudice is the procedure that was adopted. More specifically, it has been said that the Court should consider the number of photographs of the defendant, the environment in which he appears and the similarities (or otherwise) of persons in the other photographs used. It is a given that the array of photographs taken should be consistent with the original description provided by the identifying witness. That being so, the more distinctive the accused appears in relation to other persons, the stronger the case for exclusion. It has also been noted that, in comparison with visual identification, differences between the offender and the suspect may be less noticeable [6] .

    6. Odgers, Uniform Evidence Law (14th ed, Thomson Reuters), [EA 115.300], pp 945-6.

43. From my review of the photos, there is nothing particularly distinctive about the photograph of the accused; in comparison with other photographs. I have noted that the accused does not suggest any unfairness attending the procedure itself.

44. The accused’s real point is the concern of the contaminating effect of the chance encounter in December 2019. However, I accept the submission advanced by the Crown that this recognition occurred in a context of close recognition by the victim of the accused in the proximate lead up to the assault in April 2018. It is not the position that prior to April 2018, the victim and accused were strangers. I accept the Crown’s submission that in assessing that risk, I have to take into account the circumstance that the victim has been consistently adamant that the accused was part of the group in the assault. That being so, the chance encounter in December 2019 was unlikely to have any contaminating effect. Indeed, given that the victim gave unchallenged evidence of a physical gesture by the accused and a short conversation on that occasion, arguably it might be thought as reinforcing the victim’s credibility regarding prior association between the two; but that will be a matter for later consideration.

45. If it was necessary to find, it might also be said that arguably the speed with which the victim identified the accused during the photoboard process was consistent with that familiarity prior to the assault, although that will be also be a matter for later argument and consideration.

46. I am also cognisant of the misgivings about photographic identification evidence given by Kirby J in Smith v The Queen (2001) 206 CLR 650 at [55]-[56], concerning the mistakes that may commonly be made in this form of identification evidence and other risks associated with this evidence [7] ; although in acknowledging these matters, I consider that the risk of misuse of such evidence is mitigated by appropriate warnings (s 115(7) and directions (s 116) to myself. This is a trial by judge alone.

    7. See also Cross on Evidence, [1420].

47. I am not satisfied that the danger of unfair prejudice outweighs the probative value of the photoboard evidence. The objection under s 137 fails. It is unnecessary to consider s 135.

48. The accused’s objections to the photoboard evidence therefore fails.

49. The evidence on the voir dire will be evidence in the trial.

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Endnotes

Decision last updated: 13 May 2020