Strauss v Police

Case [2013] SASC 3

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

STRAUSS v POLICE

[2013] SASC 3

Judgment of The Honourable Justice Peek

18 January 2013

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT

CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE

CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - IDENTIFICATION BY STRANGER

CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - PHOTOGRAPHS - GENERALLY

CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - WARNING ADVISABLE OR REQUIRED - ADEQUACY OF WARNING - PHOTOGRAPHS

CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - WARNING ADVISABLE OR REQUIRED - EFFECT OF FAILURE TO WARN

CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE

Appeal against conviction - victim assaulted by two men - appellant identified by the victim and a witness as being one of the assailants - both identifications made by accessing photographs of the appellant on Facebook - the witness made her identification in the company of another witness who did not give a statement and was not called at trial - the victim was told that the appellant was the assailant before making his facebook identification - no baseline descripition of the assailants was taken from any witness by police at the scene - no formal photographic identification procedure was conducted by police following the facebook identifications - the victim and the witness identified the appellant in Court.

Whether the Magistrate failed adequately to warn herself of the dangers and infirmities inherent in the identifcation evidence - whether evidence sufficient to support the charge - whether a retrial should be ordered or the complaint dismissed.

Held: Appeal allowed - the Magistrate failed adequately to warn herself of the dangers and infirmities inherent in the evidence of the victim and the witness - the reliability of the victim's identification was impaired by his intoxication, the poor lighting conditions, his restricted ability to observe the features of his assailant and his prior inconsistent statements about his perceptions and the identity of his attacker - victim's evidence also likely contaminated by  conversation with other witnesses and the suggestion of the appellant's name to him - the witness' identification was unreliable due to her distance from the assault, the poor lighting, and her prior inconsistent statements about the lighting and the circumstances of her identification - her evidence was also likely contaminated by her facebook identification made in the presence of another witness participating in that purported identification and by the suggestive nature of the process - the failure of the police to take descriptions of the assailants or to conduct formal photographic identification procedures or to interview other witnesses or to investigate properly meant that the identification evidence could not be properly tested - the evidence was insufficient to prove the charge beyond reasonable doubt - conviction quashed and complaint dismissed.

Magistrates Court Act 1991 (SA) s 42; Criminal Law Consolidation Act 1935 (SA) s 20(4), referred to.
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Strauss v Police [2013] SASC 3
Case
[2013] SASC 3
Decision Date

CaseChat Overview and Summary

The case of Strauss v Police involves an appeal against a conviction for assault. The appellant was identified by the victim and a witness as one of the assailants based on Facebook photographs. Both identifications were made after the victim was told the appellant was the assailant, and no formal photographic identification procedures were conducted by police. The Supreme Court of South Australia was tasked with determining whether the Magistrate adequately warned herself of the inherent dangers and infirmities of the identification evidence, whether the evidence was sufficient to support the charge, and whether a retrial should be ordered or the complaint dismissed.

The court held that the Magistrate failed to adequately warn herself of the inherent dangers and infirmities of the identification evidence. The reliability of the victim's identification was impaired due to the victim's intoxication, poor lighting, restricted ability to observe the assailant, and prior inconsistent statements. The victim's evidence was also likely contaminated by conversations with other witnesses and suggestions of the appellant's name. The witness' identification was unreliable due to her distance from the assault, poor lighting, and prior inconsistent statements. The witness' evidence was also likely contaminated by her Facebook identification made in the presence of another witness and the suggestive nature of the process. The failure of the police to take descriptions of the assailants, conduct formal photographic identification procedures, interview other witnesses, or investigate properly meant that the identification evidence could not be properly tested. The evidence was insufficient to prove the charge beyond reasonable doubt. Consequently, the conviction was quashed, and the complaint dismissed.

In summary, the appeal was allowed because the Magistrate did not adequately warn herself of the inherent dangers and infirmities of the identification evidence. The evidence was deemed insufficient to support the conviction, leading to the quashing of the conviction and dismissal of the complaint.

Orders

Orders of the court

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Background

Background to the litigation

The appellant’s grounds of appeal are as follows:1.The learned trial Magistrate erred at law by failing to adequately warn herself of the dangers of convicting the Appellant on the basis of the identification evidence given by the witnesses Wright and Hurley.Particulars1.1 The learned trial Magistrate failed to warn herself adequately of the dangers of placing any reliance on the evidence of the in court identifications of the Appellant by Wright and Hurley.1.2 The learned trial Magistrate failed to warn herself adequately of the negligible probative value of the evidence of the in court identifications of the Appellant by Wright and Hurley.1.3 The learned trial Magistrate failed to warn herself adequately about the dangers of unreliability of the evidence of out of court identifications of the Appellant by Wright and Hurley and about the dangers of purported identification of a stranger generally.2.The learned trial Magistrate erred at law by failing to provide adequate reasons explaining why, despite the very significant problems affecting the reliability of the evidence of identification of the Appellant by Wright and Hurley, she excluded any reasonable possibility their identifications were mistaken.3.The learned trial Magistrate erred by failing to place sufficient weight on the following matters in deciding whether she could be, and was, persuaded beyond reasonable doubt that the out of court and in court identifications of made by Wright and Hurley were correct:3.1 The inherent risks of unreliability involved in the method of out of court identification of the Appellant used by Wright.3.2 The denial to the Appellant of a real opportunity to test the reliability of the out of court identification made by Wright, because of the method she used.3.3 The denial to the Appellant of a real opportunity to test the reliability of the out of court identification made by Wright, because of the prosecution’s failure to tender all of the photos from the purported Facebook pages of Matthew Daley and Brenton Strauss that Wright looked at during her out of court identification process.3.4 The failure of the prosecution to conduct a recorded identification process with Wright prior to the trial, in which she was shown a series of photographs including a photo of the Appellant.3.5 The inconsistencies between the contents of Wright’s statement to police and her evidence in court concerning how she had carried out her out of court identification of the Appellant.3.6 The inherent risks of unreliability involved in the method of out of court identification of the Appellant used by Hurley.3.7 The denial to the Appellant of a real opportunity to test the reliability of the out of court identification by Hurley, because of the method he used.3.8 The denial to the Appellant of a real opportunity to test the reliability of the out of court identification made by Hurley, because of the prosecution’s failure to tender the alleged photo of the Appellant on the purported Facebook page of Matthew Daley, in which Hurley said he had identified the Appellant during his out of court identification process.3.9 The fact that the state of the evidence with respect to Hurley’s out of court identification process left his in court identification of the Appellant as his only direct evidence identifying the Appellant as one of his assailants.3.10 The failure of the prosecution to conduct a recorded identification process with Hurley prior to the trial, in which he was shown a series of photographs including a photo of the Appellant.3.11 The witness Mertin’s failure to identify the Appellant as one of the persons who assaulted Hurley.3.12 The witness Brown’s failure to identify the Appellant as one of the persons who assaulted Hurley, together with Brown’s purported identification of two other persons when an identification process was conducted with Brown before the trial, in which he was shown a series of photographs including a photo of the Appellant.4.The learned trial Magistrate erred by placing excessive weight on the in court identifications of the Appellant by Wright and Hurley.5.The learned trial Magistrate erred in concluding on the totality of the evidence that the Appellant’s guilt had been proved beyond reasonable doubt.6.The learned trial Magistrate erred by failing to exercise her discretion to exclude the evidence of identification given by the witnesses Wright and Hurley.Overview of the facts

Evidence

Evidence Before The Court

Other infirmities of the evidence of Mr Hurley and Ms Wright are considered in detail below. I was also told by counsel for the appellant on the appeal that the solicitor appearing for the appellant at trial had submitted that the whole of the identification evidence should be excluded on a number of bases but there is no transcript of the submissions. The appellant did not seek to place before me by way of an affidavit a record of them. What is clear (as appears from her Honour’s judgment) is that her Honour delivered her ruling as to those objections as part of her final judgment and ruled the evidence admissible. PART 2: IDENTIFICATION EVIDENCE IN THE AGE OF FACEBOOK The internet, social media and social networking websites all give access to a huge amount of information and enable their users to themselves create and disseminate information. Needless to say, all such information varies greatly in accuracy and reliability and it takes little imagination to see how these advances in technology together with the concurrent changes in social behaviour greatly magnify the traditional problems associated with identification evidence.What is Facebook and how does it work? While a number of social networking sites exist,[2] I will concentrate upon Facebook in light of its pivotal role in this case, it’s ever increasing use and the broad range of communication possibilities it offers. There is a good deal of literature already available[3] and the following is only a basic summary of some relevant matters that have an important bearing on the present case.[2] Including “Twitter”, “MySpace” and “Bebo”.[3] Griffith, ‘Understanding and Authenticating Evidence from Social Networking Sites’ (2012) 7 Washington Journal of Law, Technology & Arts 209, 212-214; Millier, ‘The Facebook Frontier: Responding to the Changing Face of Privacy on the Internet’ (2009) 97 Kentucky Law Journal 542, 544. Social networking sites are websites which provide a framework by which account holders (users) can log into their account via their username and password and view, create and disseminate content of various kinds.[4] Any person can obtain an account by providing basic details, such as their name and date of birth, but often no real verification of the user’s identity is required or occurs. On websites such as Facebook, the user creates a “profile page” containing whatever personal details they choose to display (which may be accurate or not), such as their name, date of birth, gender, interests, and relationship status. The user may elect to display a “profile picture” which can be sourced from any of the millions of digital images accessible on the internet and may not be an accurate depiction of the user. A user may customise their privacy settings, restricting access to their profile to varying degrees or opening the whole to the world. Users can link their profile with the profiles of others by initiating “friend requests”, an unregulated procedure which simply depends upon the “requestee” accepting the request of another user (whose identity and status may or may not be accurately represented). A user can become “friends” with virtually anyone, including people they have never met. [4] Griffith, ‘Understanding and Authenticating Evidence from Social Networking Sites’ (2012) 7 Washington Journal of Law, Technology & Arts 209, 212.

Decision

Reasons for decision

PEEK J
To say that the above strictures apply a fortiori here is really something of a gross understatement. PART EIGHT: THE JUDGMENT OF THE MAGISTRATE The appellant complains of both positive misdirections and failures adequately to direct by her Honour. Misdirections as to Ms Wright’s evidence as to her Facebook identification It is the case that the Magistrate seriously misdirected herself as to Ms Wright’s Facebook identification. Her Honour summarised Ms Wright’s evidence thus:[17] Ms Wright identified the defendant in court and on Facebook. With regards the Facebook identification, Ms Wright believed she recognised Ashley’s boyfriend at the scene by sight but not by name. When she and Linda Ghanem were driving home at about 2am after the incident, they looked on Linda’s phone. She looked at Ashley’s Facebook page and found Matthew Daley. She then looked on the computer at work, looked up Matthew Daley’s Facebook page and found a group photo (exhibit P11) and identified one of the assailants tagged on the photo as being Brenton Strauss. She cropped that photo and gave it to the police (exhibit P10). She identified the defendant in court as being the same person as in the photos exhibited P10 and P11, and named on the photos as “Brenton Strauss” and as being the offender. (Emphasis added) Her Honour incorrectly thought that Ms Wright’s early morning Facebook session with Ms Ghanem ended at the point of finding Mr Daley on Ashley Krys’ Facebook page and asserted that it was only at the later session (with Ms Merrit at her workplace) that Ms Wright went to Mr Daley’s Facebook page and found the group photograph. Her Honour has thus overlooked the contaminating effect of the previous “joint identification” of Ms Ghanem and Ms Wright. Dock and in Court “identification” Although traditionally called “dock identification”, in Court identification now takes various forms. In Magistrate Courts, the defendant often sits behind his lawyer. Since the precise circumstances in which the in Court identifications were made in the present case were not recorded on the transcript, I received by consent pursuant to s 42(4), Magistrates Court Act 1991 an affidavit of Mr Twiggs, the solicitor for the appellant, dated 13 November 2012, which stated: 3.During the course of the trial, when the witnesses Belinda Mertin, Jarrad Hurley, Lisa Wright and Robert Browne were asked by the Police Prosecutor if they could identify in the courtroom either of persons who assaulted Jarrad Hurley, the defendant was seated in the front public seating row by himself and behind my position at the bar table, except for one part of the trial when his father may have been sitting next to him. I cannot now recall which witnesses were giving evidence when the defendant’s father may have been sitting next to him. The defendant’s father does not have the same personal appearance as the defendant and is considerably older than him.4. When the witnesses Belinda Mertin, Jarrad Hurley, Lisa Wright and Robert Browne were asked by the prosecutor if they could identify in the courtroom either of [sic] persons who assaulted Jarrad Hurley, the only persons in the courtroom other than the defendant and possibly his father were myself, the Police Prosecutor (who was female and wearing a police uniform), the Magistrates [sic] clerk (who was seated in front of the Magistrate and was also a female), the Magistrate Ms Deland SM and a Sheriff’s Officer (who was wearing a uniform). The Sheriff’s Officer may have been a different person on the various days of the trial. The Sheriff’s Officer usually sat behind a desk in the courtroom.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

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