R v Treasure (Ruling No 2)
[2019] VSC 583
•28 August 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0316
| THE QUEEN | Crown |
| v | |
| DANIEL JOHN TREASURE | Accused |
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JUDGE: | Taylor J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 August 2019 |
DATE OF RULING: | 28 August 2019 |
CASE MAY BE CITED AS: | R v Treasure (Ruling No 2) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 583 |
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CRIMINAL LAW – Evidence – Identification – Victim of armed robbery identified accused from photo board – Whether identification evidence unreliable – Whether probative value outweighed by unfair prejudice – Evidence Act 2008, s 137.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Rochford QC with Ms C Foot | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Ms S Keating | Slades and Parsons |
HER HONOUR:
Daniel John Treasure faces an indictment alleging three offences: armed robbery, murder[1] and intentionally causing injury.
[1]Pursuant to s 3A of the Crimes Act 1958 (Vic), where the foundational offence alleged is armed robbery.
The armed robbery is alleged to have taken place on 22 April 2018. The other two offences are alleged to have taken place on 30 April 2018. The present application concerns the first charge of armed robbery.
The issue at trial is identity. The accused denies that he was the offender.
Alleged Facts
It is convenient to summarise the relevant aspects of the prosecution case.
On or about 19 April 2018, Daniel Fedele came across an online profile in the name of ‘Nikki’ on an application called SKOUT. He clicked on Nikki’s profile and an online exchange occurred. On either 21 or 22 April 2018, Nikki gave Mr Fedele her mobile telephone number for him to contact her. That number was registered in the name and Berwick residential address of the accused. Two different telephone handsets were later seized from the accused’s premises. The SIM card pertaining to that phone number had been used in both.
Mr Fedele and Nikki then exchanged a series of text messages on 22 April 2018. That exchange included a discussion about drugs. Approximately half an hour before midnight, they agreed to meet. Nikki nominated an address in Berwick. Mr Fedele attended and sent a text message to ask where he should park. Nikki responded with instructions as to where to park and for Mr Fedele to come to the front door, where she would buzz him in.
Mr Fedele did as he was bid and, a short time later, heard a car door slam and saw a man walking down the driveway towards him. As the man reached Mr Fedele he said words to the effect of ‘your mate Nikki that you are waiting for to let you in, give me what is in your pocket … your mate Nikki, there is no Nikki. Give me what is in your pocket’.
The man lifted his left hand and a knife became visible. He said words to the effect of ‘don’t try anything stupid, I have boys in the car’. Mr Fedele handed over approximately half a gram of ‘ice’ he had in his pocket. The man took the drugs and walked back down the driveway.
Mr Fedele left the scene and tried to phone Nikki. The call was unanswered.
Mr Fedele later provided a physical description of the male that was consistent with the accused. He also correctly identified the accused from a photo board, while saying he was not 100% sure it was him.
The Defence Application
The accused seeks exclusion of the identification of the accused by Mr Fedele from the photo board on the basis that it is so unreliable that its probative value is low and is outweighed by the danger of unfair prejudice to the accused. The accused relies upon s 137 of the Evidence Act 2008 (‘Act’).[2]
[2]The accused makes no argument with respect to ss 114 and 115 of the Act.
The defence argument rests on four bases. First, that Mr Fedele had to be contacted by police three times before he was prepared to make a statement. Second, that on the second occasion he was so contacted, Mr Fedele was told that he was being asked to assist in a homicide investigation, in effect to identify the suspect in that investigation. Third, that he asked police if anything would happen to him by admitting possession of drugs and that he felt that by cooperating with police it might improve his chances of not being charged. Fourth, that his ultimate identification was less than 100% sure.
It is submitted that the identification is vague and unreliable, clouded by information about the homicide which he should not have been told and motivated by self-interest. It is argued that this renders the probative value of the identification low. Further, it is argued that the risk of unfair prejudice is high. Defence counsel submitted that despite direction, a jury will not appreciate the nature of the prejudice that flows from Mr Fedele’s knowledge of the homicide investigation and his self-interest.
The Prosecution Submission
The senior prosecutor submitted that the entire photo board procedure was filmed and so the jury would be able see precisely what occurred. He submitted that there was no criticism of the construction of the photo board itself or that there was any suggestion that Mr Fedele was influenced in any way to select someone. The issues of motivation and self-interest could be elicited before the jury. The probative value was high. With appropriate directions, the admission of the evidence would elicit no unfair prejudice.
Legal Principles
Section 137 of the Act requires the court to refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused. In reaching that determination, the court must separately assess the probative value of the evidence and the danger of unfair prejudice before weighing the two matters.
In assessing probative value, the court must take the evidence at its highest and consider the extent to which the evidence can affect the probability of the existence of the facts in issue.[3] As the High Court restated the position in The Queen v Bauer:[4]
[I]t is not for a trial judge to say what probative value a jury should give to evidence but only what probative value the jury acting rationally and properly directed could give to the evidence. Hence, unless evidence is so lacking in credibility or reliability that it would not be open to a jury acting rationally and properly directed to accept it, the probative value of the evidence must be assessed, for the purposes of s 137, at its highest.[5]
[3]IMM v The Queen (2016) 257 CLR 300, [47] (‘IMM’)
[4][2018] HCA 40, [95] (‘Bauer’)
[5]Bauer, [95].
Unfair prejudice is not defined by the Act, but arises in circumstances where there is a real risk that the evidence will be misused by the jury notwithstanding proper directions.
Analysis
In my view, the probative value of the identification evidence is high.
The starting point is that Mr Fedele correctly identified the accused as the offender who robbed him at knife point on 23 April 2018. That he was not 100% sure of the identification does not mean he was dangerously unsure. After narrowing his selection to four photographs, he said ‘[the more I look at it, and I’m not sure, but number 8 is a bit more like it. Not sure. Not 100%. After it, I can’t be definite. Number 8 is where I’m going with it.’[6] The construction and use of the photo board is not criticised. And, because of the filming of the process, what occurred is transparent. There is no suggestion that when he had narrowed the possibilities to four, that he was in any way pressured to make a final selection.
[6]Statement of Daniel Fedele, 12 July 2018.
That Mr Fedele might have been motivated to participate in the identification process either because he thought it might mean that he was not charged with drug offences at all or might face less serious drug charges, or because he wanted to assist police solve a homicide goes only to the fact that Mr Fedele agreed to participate in the process at all. It cannot logically affect the selection he made as a result of participating in that process. As I have said, there is no suggestion that Mr Fedele was in any way coached to select the photograph of the accused from the photo board. He was told that he was not obliged to identify anyone. He was told that he should not conclude or guess that the group of photographs contained the image of the person he had been asked to identify. And despite being told about the homicide investigation, no issue of displacement arises. Mr Fedele had not seen an image of the accused in circumstances where the accused was identified as a suspect in the homicide prior to the photo board process.[7]
[7]Cf Baley v The Queen [2016] VSCA 160, [48]-[58].
Accordingly, I do not find that the identification of the accused by Mr Fedele is unreliable. Taking the evidence at its highest, Mr Fedele identified the accused as the man who robbed him at knife point. The evidence is not so lacking in credibility or reliability that it would not be open to a jury acting rationally and properly directed to accept it. On a charge where the issue is identity, that evidence is strongly probative.
Further, there is no real risk that the jury will use the evidence in an unfair way. Evidence is not unfairly prejudicial merely because it increases the likelihood of an accused being convicted.[8] The circumstances in which Mr Fedele came to participate in the photo board process can be explored in front of the jury. His stated level of satisfaction of the identification is known. The jury will, in combination with the other evidence, give the identification such weight as appropriate after being properly directed as to the use of identification evidence.
[8]FMJ v R [2011] VSCA 308, [56] (Weinberg JA, Hansen JA and Beach AJA agreeing).
The high probative value of the evidence must be weighed with the low danger of unfair prejudice.
Conclusion
It follows that the probative value of the identification evidence is not outweighed by the danger of unfair prejudice to the accused. The evidence will be admitted.
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