R v Truong Hong Phuc & Truong Thi Van

[2000] VSC 244

SUPREME COURT OF VICTORIA
CRIMINAL DIVISION	Not Restricted

No. 1449 of 1999

THE QUEEN

v.

TRUONG HONG PHUC AND TRUONG THI VAN

---

JUDGE:	VINCENT, J.
WHERE HELD:	MELBOURNE
DATE OF RULING:	27 MARCH 2000
DATE REASONS HANDED DOWN:	16 JUNE 2000
MEDIUM NEUTRAL CITATION:	[2000] VSC 244

---

CATCHWORDS:      Evidence of Photographic Identification – Circumstantial evidence – Whether admission of photographic identification would be unfair and prejudicial – Whether evidence should be excluded in the exercise of judicial discretion - Evidence is probative and admissible.

---

APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr. G. Hicks Mr. A. Moore Ms K. Judd	Office of Public Prosecutions
For the Accused Phuc	Mr. P. Morrissey	Clarebrough Pica
For the Accused Van	Mr. S. Langslow	Stary George Myall

HIS HONOUR:

1. In the course of a search, conducted at premises at 24 Hoi King Street, Tai Kik Tsui, Hong Kong, among a number of items seized was a photograph of persons seated at a table in what appears to be a restaurant.

1. Detective Sergeant Tragardh, who has, on separate occasions according to the evidence, spent a number of hours in the company of a man, named Bui Tai Huu, and the accused, Truong Hong Phuc, has identified each of those persons as being depicted in it.  The Crown contends that, in circumstances where the existence of a relationship between the two men is both highly relevant and contested by the defence, the photograph constitutes a significant piece of circumstantial evidence that such an association did exist.

1. I do not think that I need to set out the large body of authority in which the courts have repeatedly drawn attention to the dangers involved in identification evidence, particularly where the identification is made by reference to a photograph or of a person alleged to be depicted in a photograph.  The risk of misidentification is apparent and its potential sources are, I would suggest, fairly obvious.  I also accept that identification evidence of the kind proposed is capable, in the circumstances of the present case, of attracting a degree of prejudice and possesses a potential to impact on the fair trial of the accused.  I am mindful that for more than one reason it is necessary for care to be exercised before the evidence is admitted into the trial.

1. There can be little doubt that, considered in the context of the prosecution case against the accused concerned, the existence of an association with Bui Tai Huu is significant.  Evidence that they were photographed together in a restaurant would be relevant to the establishment of such a link.

1. There is no evidence as to when the photograph was taken, but no point has been made of this consideration in a situation where any association at any time appears to be denied on behalf of the defence.  It is also of significance in the present context that the photograph was located in premises with which, according to the evidence, the accused was associated.

1. The thrust of the objection advanced by Mr. Morrissey, who appears on behalf of the accused Phuc, to the introduction of this evidence is that, for a number of reasons, photographic identification of the kind proposed would be both unreliable and capable of prejudicing the fair trial of his client.

1. In support of this contention, he has relied upon; the general poor quality of the photograph itself, the fact that the person identified as Bui Tai Huu can only be seen in profile (portion of his face being hidden from view by some object) and the fact that the face of the person identified as the accused Truong Hong Phuc is partially covered by writing.  Each of these features considered separately, it was asserted, would render any photographic identification unreliable and, accordingly, dangerous and that the risk is compounded by the presence of all of them in a single photograph.

1. Next, it was argued that the jury has been in the presence of the accused for several weeks and might well embark upon an improper process of comparison between the photograph and the accused, looking for common features and, perhaps, being influenced by the acceptance of an identification of the other person to whom reference has been made, as Bui Tai Huu.

1. Finally, it was contended that the identification made by the investigating police member of the accused man and the person said to be Bui Tai Huu in the photograph could have been influenced by his involvement in the process to that point of time.

1. I have now viewed the exhibit photograph and have seen it enlarged on the screen in this Court.  As counsel has pointed out, the face of one of the persons can only be viewed in profile and portion of the face of the other is obscured by markings on the photograph.

1. With respect to the quality of the photograph, specifically the sharpness of the images shown, I accept that it is, on visual examination, not particularly good.  However, I consider that, when enlarged as it has been in the Court, the photograph is of sufficient quality and a sufficiently clear view of the persons depicted is present for an opinion of identification to be expressed by a person who is well familiar with the features of the persons being so identified.  It has not been suggested that Detective Sergeant Tragardh does not qualify in this respect.  Indeed, in what is perhaps a somewhat curious twisting of the reasoning employed in such identification cases, it was argued that his very familiarity may have led to a misidentification.

1. I do not consider that, in the circumstances, any potential prejudice which could be argued to arise through the introduction of this evidence would require its exclusion in the proper exercise of judicial discretion.

1. I consider that the evidence is probative and admissible.  It will, of course, be necessary to provide careful instruction to the jury as to the problems involved in such identification techniques and the care with which they must approach their task in this respect.

---