Strauss v Police
[2013] SASC 3
•18 January 2013
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.
Domican v The Queen (1992) 173 CLR 555, applied.
Murdoch v The Queen [2007] NTCCA 1; R v Williams [1983] 2 VR 579, distinguished.
R v Marshall (2000) 113 A Crim R 190; Smith v The Queen (2001) 206 CLR 650; Jokic v Hayes (1990) 53 SASR 530; Sharrett v Gill (1993) 65 A Crim R 44; Parker v Espinoza (1996) 85 A Crim R 336; Berrell v Gill (1993) 113 FLR 333; Tatam v Svikart [1999] NTCA 146; Johnson v Giumelli (2003) 175 FLR 467; Dennis v Davis (2010) 204 A Crim R 1; Connelly v Allan (2011) 212 A Crim R 320; R v Elliott (Unreported, Supreme Court of South Australia, Duggan J, 19 November 1993); Hirst v Police (2006) 95 SASR 260; R v McGranaghan [1995] 1 Cr App R 559; R v Turnbull [1977] QB 224; R v Burchielli [1981] VR 611; Davies and Cody v The King (1937) 57 CLR 170; R v S,G (2011) 109 SASR 491; Taylor v Hayes (1990) 53 SASR 282; Laurie v Nixon (1991) 162 LSJS 16; Warren v Coombes (1979) 142 CLR 531; Alexander v The Queen (1981) 145 CLR 395; Craig v The Queen (1933) 49 CLR 429; Festa v The Queen (2001) 208 CLR 593; R v Manh (1983) 33 SASR 563; Pitkin v The Queen (1995) 130 ALR 35; Gribic v Pitkethley (1992) 38 FCR 95, discussed.
R v Britten (1988) 51 SASR 567; R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54; R v Christie [1914] AC 545; Siebel v The Queen (1992) 57 SASR 558; Burlinson v Police (1994) 75 A Crim R 259, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"Facebook", "social networking sites", "social networking", "social media"
STRAUSS v POLICE
[2013] SASC 3Magistrates Appeal
PEEK J. Appeal pursuant to s 42, Magistrates Court Act 1991.
The appellant Brenton Strauss appeals against a conviction of aggravated assault causing harm contrary to s 20(4), Criminal Law Consolidation Act 1935. It was alleged that on 10 October 2010 he assaulted Jarrad Hurley causing him injuries and that the offence was aggravated by being committed in company with others.
PART 1: INTRODUCTION
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.
Particulars
1.1 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
On the evening of 9 October 2010, the victim, Mr Hurley, attended a work function at Toys-R-Us at Modbury (the function) with a number of fellow employees. He consumed a large amount of alcohol and he described his condition by the end of the function as “very drunk”. During the evening, Mr Hurley had a verbal clash with Ms Ashley Krys, another employee who was also intoxicated, and then or a little later loudly referred to her as a stupid or silly “bitch”. Ms Krys was, or had been, the girlfriend of a man called Matthew Daley who was not at the function but features prominently in what follows.
When the function ended, six passengers (including Mr Hurley, Ms Lisa Wright, Ms Belinda Mertin and Ms Linda Ghanem but not Ms Krys) left the function in a small minibus and were driven by Mr Browne to the car park of the Tea Tree Plaza Shopping Centre where they were to disembark. Upon arrival at the car park at about 12:30am, Mr Browne noticed a group of males near some parked cars in the car park. The group began to converge on the minibus shortly before it came to a final stop, some of the males peering in through the windows of the minibus. Mr Hurley (who was at the front of the minibus) alighted alone and was immediately approached by the group of males before anyone else left the bus. He was punched and kicked by two particular assailants (the two assailants) and the case against the appellant as particularised at trial was that the appellant was one of the two assailants. None of the other members of the group seem to have made any physical contact with him. Mr Hurley re-entered the minibus, but not before suffering several injuries including two fractured teeth, bruising and a cut to his lip.
The case for the prosecution - overview
The prosecutor at trial opened the case by saying “This is an incident of revenge”. The prosecution case was that Mr Hurley had insulted Ms Krys, that her boyfriend Mr Daley had learnt of it, that he had met the minibus at the car park with a number of other males, and that injuries to Mr Hurley had ensued. The prosecution case was to be supported by evidence from Mr Hurley that just before he was assaulted by the appellant and another man, he heard a man say: “I heard you said something about my girlfriend” (hereafter sometimes to be referred to as “the girlfriend comment”). The prosecution case was that that man was Mr Daley. To this case was added the fact that the appellant and Mr Daley are cousins, a matter established by the video record of the appellant’s interview in which he admitted this relationship. As is obvious, Mr Daley and his activities were central to the prosecution case.
Only four persons on the bus were called as prosecution witnesses at trial: Mr Browne (the bus driver), Mr Hurley, Ms Lisa Wright (Ms Wright) and Ms Belinda Mertin (Ms Mertin). Mr Hurley and Ms Wright both asserted that they had identified the appellant as the main assailant from photographs on the social networking site, Facebook, after the incident and purported to identify the appellant in Court.
The case for the defence - overview
In very brief form, the appellant’s case is as follows. Neither Mr Hurley nor Ms Wright were requested by police to give a description of the offenders after the assault and before they left the scene as should have occurred. Communication between the witnesses (with the exception of the bus driver Mr Browne) was rife from immediately after the assault and was continuous for some time, contaminating eventual identifications. The Facebook identification by Ms Wright was made in company with another witness, Ms Ghanem (who was not called at trial and from whom a statement was never taken), in highly suggestive and contaminating circumstances. The Facebook identification by Mr Hurley was made in circumstances where he was told by other witnesses that “Brenton Strauss” was the assailant, he then went to the appellant’s Facebook page and there saw a photograph of Mr Daley (whose face he already well knew) together with the appellant in a friendly pose (both the appellant and Mr Daley being identified by name on the photograph) and then “identified” the appellant.
Despite the obvious questions hanging over these “identifications”, neither Mr Hurley nor Ms Wright were requested by police to undertake a formal photographic identification procedure as should have occurred. Both later purported to identify the appellant in Court in circumstances where he was the only possible candidate present.
Mr Browne was the only one to have performed a formal photographic identification procedure (which included a photograph of the appellant) and he had identified two males as the assailants, neither of whom was the appellant.[1] When Ms Mertin was asked in Court “Do you recognise anyone in Court today who you saw assaulting Jarrad (Hurley)?” she replied “No”. She stated in cross-examination that she had not been asked by police to look at any photographs in relation to this matter and that, if she had been so requested, she would have undertaken such a procedure.
[1] Mr Browne did purport to identify the appellant in Court but the Magistrate correctly rejected that evidence as worthless.
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.
Facebook users can “post” comments on any subject and may upload photographic images and other media files on to their profile. They can elect to “tag” themselves or others depicted in such images, a process which displays a label with a name when a user hovers a cursor over the relevant part of the image. This tag may then link to the named person’s own Facebook profile. Again, there is no real auditing of this process, and the label applied to a photograph may not actually correspond with what is depicted in the image. As an innocent example, a user may perhaps upload a photograph of a celebrity and attach to it a tag of one of their friends, thus suggesting a resemblance.
Facebook users have multiple options of communication including “posting” on a friend’s wall, sending a friend a “private” message (much like an email), or engaging in instant messaging with a friend using “Facebook chat” as well as an ability to send a message simultaneously to multiple persons.
The traditional approach to the problems of identification evidence
Long before the advent of Facebook, it was well-recognised in both the courts and the scientific literature that identification evidence, particularly in relation to strangers, has “special problems”.[5] It is a suspect type of evidence: “notoriously uncertain”,[6] “often proved to be unreliable”[7] and “proverbially untrustworthy”.[8] But despite its unreliability, eyewitness testimony remains very persuasive.[9] Identification is a matter about which many witnesses are over-confident, even dogmatic.[10] Such evidence is rightly described as “seductive”.[11]
[5] The literature is wide and deep and includes the following: Australian Law Reform Commission, Evidence: Volume 1, Report No 26 (1986) 228-249; Cutler and Penrod, Mistaken Identification: The Eyewitness, Psychology, and The Law (Cambridge University Press, 1995); Deutscher and Leonoff, Identification Evidence (Carswell Publications, 1991); Eggleston, ‘Identification’ (1978) 10 Australian Journal of Forensic Sciences 93; Gambell, ‘The Need to Revisit the Neil v. Biggers Factors: Suppressing Unreliable Eyewitness Identifications’ (2006) 6 Wyoming Law Review 189; LexisNexis, Cross on Evidence: Australian Edition, vol 1 (at Service 148 and 149) [1335]-[1455]; Heydon, ‘Evidence of Identification: The Law’ (1982) 14(4) Australian Journal of Forensic Sciences 134; Jackson, ‘The Insufficiency of Identification Evidence Based on Personal Impression’ [1986] Criminal Law Review 203; Ligertwood, Australian Evidence: A Principled Approach to the Common Law and the Uniform Acts (LexisNexis, 5th ed, 2011) [4.54]-[4.75]; Loftus, Eyewitness Testimony (Harvard University Press, 1979); Re, ‘Eyewitness Identification: Why So Many Mistakes?’ (1984) 58 Australian Law Journal 509; Sporer et al (ed), Psychological Issues in Eyewitness Identification (Lawrence Erlbaum Publishers, 1996); Thomson, ‘The Realities of Eye Witness Identification’ (1982) 14(4) Australian Journal of Forensic Sciences 150; Tinsley, ‘Identification Procedures and Options for Reform’ [2000] Victoria University of Wellington Law Review 11; McKenzie, ‘Eyewitness evidence: Will the United States Guide for Law Enforcement make any difference?’ (2003) 7 International Journal of Evidence & Proof 237; Roberts, ‘The problem of mistaken identification: Some observations on process’ (2004) 8 International Journal of Evidence & Proof 100; Coyle, Field and Miller, ‘The blindness of the eyewitness’ (2008) 82 Australian Law Journal 471; Cutler (ed), Expert Testimony on the Psychology of Eyewitness Identification (Oxford University Press, 2009).
[6] Alexander v R (1981) 145 CLR 395, 426 (Mason J).
[7] Festa v R (2001) 208 CLR 593, 610 (McHugh J).
[8] Gambell, ‘The Need to Revisit the Neil v. Biggers Factors: Suppressing Unreliable Eyewitness Identifications’ (2006) 6 Wyoming Law Review 189, 190.
[9] Deutscher and Leonoff, Identification Evidence (Carswell Publications 1991) 1-2, citing the Devlin Report and other statistics.
[10] Heydon, ‘Evidence of Identification: The Law’ (1982) 14(4) Australian Journal of Forensic Sciences 134, 136; LexisNexis, Cross on Evidence: Australian Edition, vol 1 (at Service 148 and 149) [1350].
[11] Domican v The Queen (1992) l73 CLR 555, 561; Re, ‘Eyewitness Identification: Why So Many Mistakes?’ (1984) 58 Australian Law Journal 509, 515-516.
These problems have been recognised in many statements of Justices of the High Court. An emblematic statement is that of Mason J in Alexander v The Queen:[12]
Identification is notoriously uncertain. It depends upon so many variables. They include the difficulty one has in recognizing on a subsequent occasion a person observed, perhaps fleetingly, on a former occasion; the extent of the opportunity for observation in a variety of circumstances; the vagaries of human perception and recollection; and the tendency of the mind to respond to suggestions, notably the tendency to substitute a photographic image once seen for a hazy recollection of the person initially observed.
[12] (1981) 145 CLR 395, 427.
Part of the problem is that the process(es) by which an eyewitness attempts to make an identification is highly complicated. To say so is to express neither an original nor recent discovery. For example, in 1933 in Craig v The Queen,[13] Evatt and McTiernan JJ stated:
An honest witness who says “The prisoner is the man who drove the car,” whilst appearing to affirm a simple, clear and impressive proposition, is really asserting: (1) that he observed the driver, (2) that the observation became impressed upon his mind, (3) that he still retains the original impression, (4) that such impression has not been affected, altered or replaced, by published portraits of the prisoner, and (5) that the resemblance between the original impression and the prisoner is sufficient to base a judgment, not of resemblance, but of identity. It therefore became necessary, in the present case, to pay attention to the following circumstances:—(1) Whether the witness was a stranger to the driver of the car, (2) whether the driver had any special peculiarities which, at the time, impressed themselves upon the witness, (3) the length of time which elapsed between December 14th and (a) the time when the witness first described the driver or (b) the time when the witness saw the accused person, (4) the description of the driver given by the witness before seeing the prisoner, and (5) the circumstances under which the prisoner was first seen and identified by the witness as the driver.
[13] (1933) 49 CLR 429, 446.
The scientific literature in this area tends to focus upon three basic processes of the human brain: (i) initial perception or acquisition, (ii) retention, and (iii) retrieval and communication.[14]
The initial “perception or acquisition” stage
[14] Re, ‘Eyewitness Identification: Why So Many Mistakes?’ (1984) 58 Australian Law Journal 509, 510; Deutscher and Leonoff, Identification Evidence (Carswell Publications, 1991) 3, 12.
In the initial perception or acquisition stage, the human brain does not “record” an event as a camera or video recorder might but rather reacts to, and acquires, a varying number of environmental stimuli.[15] Situations of stress, particularly through fear of violence, will inhibit perception performance.[16] Of course, numerous factors at the scene may affect perception. Some factors are related to the event itself such as lighting, distance, and length of time.[17] Others are related to the witness, such as age, stress level, expectations, sex, and the influence of alcohol and drugs.[18] One can easily appreciate that many of these matters are of great importance in the present case.
[15] Deutscher and Leonoff, Identification Evidence (Carswell Publications, 1991), 3; Ligertwood, Australian Evidence: A Principled Approach to the Common Law and the Uniform Acts (LexisNexis, 5th ed, 2011) [4.59]; McKenzie, ‘Eyewitness evidence: will the United States Guide for Law Enforcement make any difference?’ (2003) 7 International Journal of Evidence & Proof 237, 239-240; Roberts, ‘The problem of mistaken identification: Some observations on process’ (2004) 8 International Journal of Evidence & Proof 100, 103; Coyle, Field and Miller, ‘The blindness of the eyewitness’ (2008) 82 Australian Law Journal 471, 473.
[16] Gambell, ‘The Need to Revisit the Neil v. Biggers Factors: Suppressing Unreliable Eyewitness Identifications’ (2006) 6 Wyoming Law Review 189, 198; Deutscher and Leonoff, Identification Evidence (Carswell Publications, 1991) 7; Thomson, ‘The Realities of Eye Witness Identification’ (1982) Australian Journal of Forensic Sciences, 150, 150-151.
[17] Re, ‘Eyewitness Identification: Why So Many Mistakes?’ (1984) 58 Australian Law Journal 509, 510.
[18] Deutscher and Leonoff, Identification Evidence (Carswell Publications, 1991) 6ff; Re, ‘Eyewitness Identification: Why So Many Mistakes?’ (1984) 58 Australian Law Journal 509, 510-511ff; Coyle, Field and Miller, ‘The blindness of the eyewitness’ (2008) 82 Australian Law Journal 471, 473.
The second “retention” stage
The second retention stage actually involves the beginning and continuation of a process of forgetting the original image. Time is obviously a critical factor causing memory decay. Memory may also become corrupted or contaminated by post-event information.[19] Numerous studies have shown that witnesses may incorporate new, often false, information into their reports of events if the information is introduced through a credible source.[20] Once introduced, witnesses may quite honestly be unable to distinguish the originally perceived material from that which has been gleaned from other sources.
[19] Re, ‘Eyewitness Identification: Why So Many Mistakes?’ (1984) 58 Australian Law Journal 509, 511; Roberts, ‘The problem of mistaken identification: Some observations on process’ (2004) 8 International Journal of Evidence & Proof 100, 103-105.
[20] As an interesting example, psychological tests have shown that if the witness initially makes a misidentification and later sees the real perpetrator, he may no longer be able to recognise him as the offender, the photograph array process and efforts at recall having distorted the memory: Gambell, ‘The Need to Revisit the Neil v. Biggers Factors: Suppressing Unreliable Eyewitness Identifications’ (2006) 6 Wyoming Law Review 189, 200.
Thus, in the present case it was extremely important to obtain descriptions of the assailants from the witnesses while they were still at the scene not only because their memory was then fresh but also because it was necessary to record the descriptions of the offenders by the witnesses before their memories became contaminated through such things as communications with other witnesses and looking at photographs.[21] Unfortunately this was not done.
[21] O’Floinn and Ormerod, ‘Social networking material as criminal evidence’ [2012] Criminal Law Review 486, 500; Roberts, ‘The problem of mistaken identification: Some observations on process’ (2004) 8 International Journal of Evidence & Proof 100, 104.
The courts have always recognised that discussion between potential witnesses may severely reduce the value of the testimony of the individual witnesses and that this is particularly so in the area of identification evidence. Thus, in R v Manh[22] one of the complaints on appeal was of a failure adequately to put the defence case to a charge of rape where the defence was mistaken identification. There Mitchell ACJ stated:[23]
The learned trial Judge told the jury what was the case for the defence as stated by the appellant in his evidence. He did not, however, refer to the claimed deficiencies in the Crown case. In particular, as I have said, he did not warn the jury as to the dangers that the appellant might have been wrongly identified, particularly by reason of the fact that the jury may have found that all the witnesses were drunk nor did he warn them of the evidence which indicated that the witnesses had not only discussed the incidents in the presence of each other but that, at least in the case of the two young women, each had heard the other giving a statement to a police woman ... I think that in the instant case the summing up failed to put a salient part of the defence in that it failed to direct the jury as to questions which they had to consider in order to decide whether the identification of the appellant was proved to their requisite satisfaction. (Emphasis added)
[22] (1983) 33 SASR 563.
[23] (1983) 33 SASR 563, 575. Her Honour considered this to be the position notwithstanding the fact that the appellant was a person well known to the witnesses and the prosecution case was really asserted to be one of recognition.
The third “retrieval and communication” stage
As to the third retrieval and communication stage, some issues of obvious present importance are suggestibility of identification, “foil bias”, subconscious elimination of doubts and qualifications by the witness, and the “displacement effect”.
Suggestibility - a subconscious bias to select a photograph
It is well understood that the retrieval process may be affected by what may be referred to as “context cues”.[24] For example, in the case of the traditional physical line-up or photographic array, most witnesses will realise that if the police have gone to the trouble of assembling such a procedure, they must have a suspect in mind and will try hard to find a match between their memory and the persons or photographs presented to them. There is therefore a real risk that a photograph array will become a “multiple-choice test”, the witnesses choosing the one that most resembles their recollection of the criminal.[25] Thus, in Pitkin v The Queen[26] Deane, Toohey and McHugh JJ stated:
Another such danger is that a witness who is shown photographs by investigating police will ordinarily be desirous of assisting the police and will be likely to assume that the photographs shown to her by the police are photographs of likely offenders. In that context, and in an environment where the ultimate accused will necessarily be absent and unrepresented, there may be subconscious pressure upon the witness to pick out any photograph of a “suspect” who “looks like” the offender notwithstanding that the witness cannot, and does not purport to, positively identify the subject of the photograph as the offender.
[24] Deutscher and Leonoff, Identification Evidence (Carswell Publications, 1991) 16; Cutler and Penrod, Mistaken Identification: The Eyewitness, Psychology, and The Law (Cambridge University Press, 1995) 113.
[25] Deutscher & Leonoff, Identification Evidence (Carswell Publications, 1991) 28.
[26] (1995) 69 ALJR 612, 615 B (col 1).
An appreciation that the law recognises such a baseline degree of suggestibility in a formal photographic identification procedure can only emphasise the overwhelming nature of the suggestibility involved in the haphazard situation presented by the facts of the present case.
“Foil bias”
Another issue is referred to in the scientific literature as “foil bias” and basically refers to the required degree of similarity of the persons in a line-up or the photographs in an array. However, the matter is more complicated than that. Where police have a definite suspect, an important question will be: how many members of the array reasonably match the eyewitness’ description of the crime perpetrator? In other words, it is not enough for the “distractors” to fit a general description of the suspect himself. Rather, their appearance should fit the original description given by the witness at the earliest possible time: if this procedure is not adopted, the nominal size of an array may be much larger than its “functional size”. The general question of whether an array can be considered to be “fair” is, of course, related to a number of difficult questions as to how the brain chooses one face from an array of faces.[27] Obviously these matters are not directly related to the situation in the present case where, quite wrongly, the witnesses Mr Hurley and Ms Wright were never requested to undergo a formal photographic identification procedure. However, knowledge of the requirements for a fair array can only emphasise the true extent of the dangers of the chain of events that occurred in the present case.
[27] Thomson, ‘The Realities of Eye Witness Identification’ (1982) 14(4) Australian Journal of Forensic Sciences, 150, 154-157; Deutscher and Leonoff, Identification Evidence (Carswell Publications, 1991) 24; Heydon, ‘Evidence of Identification: The Law’ (1982) 14(4) Australian Journal of Forensic Sciences 134, 136; Harmon, ‘Recognition of the Face’ (1973) 229(5) Scientific America 71.
Subconscious elimination of doubts and qualifications by the witness
It is well established that memory is not only affected by post-event information but is also affected by the subconscious psychological need to eliminate uncertainties and inconsistencies. In effect, memories are internally distorted so that “it all makes sense”.[28] Of course, an obvious example of that process is that doubts that a witness originally has as to identification “may be resolved by another [witness’] confidence”.[29] Hence the great dangers of memory contamination through witnesses talking to each other - and the commensurate importance of police taking full statements from each identification witness immediately (and obviously separately). Again, it is hardly necessary to stress the obvious application that these matters have to the evidence of both Ms Wright and Mr Hurley.
[28] Deutscher and Leonoff, Identification Evidence (Carswell Publications, 1991) 15.
[29] Heydon, “Evidence of Identification: The Law’ (1982) 14(4) Australian Journal of Forensic Sciences 134, 138; Roberts, ‘The problem of mistaken identification: Some observations on process’ (2004) 8 International Journal of Evidence & Proof 100, 104.
The displacement effect
The displacement effect may occur in a variety of circumstances but the courts have most often addressed the displacement effect in the context of stressing that a “memory [of a person’s features may be] altered by later experiences such as the perusal of photographs or identikit pictures”, reading descriptions of the suspect or other persons or viewing newspaper sketches of the suspect.[30] It is well recognised that after a photographic identification process, the witness’ recollection of the culprit and recollection of the photograph are likely to be so merged that the two can no longer be separated.[31] The traditional statement for Australia is that of Stephen J in Alexander v The Queen:[32]
Lastly, there is the “displacement” effect. Having been shown a photograph, the memory of it may be more clearly retained than the memory of the original sighting of the offender and may, accordingly, displace that original memory. Any subsequent face-to-face identification, in court or in an identification parade, may, on the identifying witness’s part, in truth involve a matching of the man so identified with the remembered photograph, which has displaced in his memory his recollection of the original sighting.
[30] Heydon, “Evidence of Identification: The Law” (1982) 14(4) Australian Journal of Forensic Sciences 134, 138.
[31] Deutscher & Leonoff, Identification Evidence (1991, Carswell Publications) 28-31.
[32] (1981) 145 CLR 395, 409.
Facebook: a substantial increase in the risk of contamination of evidence
With Facebook comes the ever increasing social practice of groups of people having simultaneous electronic communications involving not just the two persons who might have a telephone conversation, or the number of people who might meet in a room, but an unlimited number of people at an unlimited number of physical locations. As Burd and Horan state in the context of a discussion of the contamination of jury pools:[33]
Over the past two decades, the internet has upgraded and revolutionised the way in which we communicate and disseminate information. Newspapers are read online, televised broadcasts are stored and watched on YouTube, radio segments are available via podcast, Facebookers, bloggers and tweeters can share ideas, opinions and images with the world at large. Criminal matters have been, and continue to be, the subject of talkback radio debate, as well as television series, movies, Facebook, tweets, blogs and YouTube videos. Significantly, everything posted on the internet can be archived and accessed instantly at the click of a mouse. There is very little limit on who can contribute to this sphere of ideas and what can be published, stored and later retrieved. Essentially anyone can be a publisher on the internet.(Emphasis added; footnotes omitted)
[33] Burd and Horan, ‘Protecting the right to a fair trial in the 21st century – has trial by jury been caught in the world wide web?’ (2012) 36 Criminal Law Journal 103, 105.
Although the authors here use the phrase “click of a mouse”, it must also be remembered that a high percentage of users now have the ability to use such functions on internet-enabled mobile phones and thus to exchange information virtually anywhere, at any time and practically simultaneously with the occurrence, or at least in the immediate aftermath, of a subject event.[34] Thus, the opportunities for witnesses to contact one another after the occurrence of a crime and to discuss their perceptions of the event and the appearance or identity of the offender are greatly increased. Such witnesses may also involve others who were not present at the scene and seek their opinion.
[34] Greene and O’Leary, ‘Ensuring a Fair Trial for an Accused in a Digital Era: Lessons for Australia’ in Keyzer, Johnson and Pearson (eds), The Courts and the Media: Challenges in the Era of Digital and Social Media (Halstead Press, 2012) 101.
This general process substantially exacerbates the traditional problem of witnesses collaborating with the result that identifications of the offender may be severely contaminated, the process warned against by Mitchell ACJ in R v Manh.[35] In the age of Facebook, the spectre of what is little more than speculation upon speculation very quickly solidifying into an “accepted view” is something that must be very closely guarded against when trying to bridge the chasm between social chit chat and proof beyond reasonable doubt in a court of law.
[35] (1983) 33 SASR 563.
Facebook investigations: further problems for the courts
A further major development is that Facebook has spawned a new generation of private investigators. Through the use of the facilities referred to above, Facebook becomes an investigative tool allowing users to search profiles (a process often referred to colloquially as “Facebook stalking”).
It is undeniable that this new phenomenon may lead to the acquisition of suspects that police might not have obtained themselves. But what also must be stressed is that the process itself has very great problems in relation to the potential contamination of evidence necessary for a conviction in a court of law. Such problems are likely to arise when a victim of a crime, or a witness to it, searches Facebook looking for the offender using what information they have, or think they have, about the offender. This is, of course, what occurred in the present case. Thus, O’Floinn and Ormerod observe:[36]
Witnesses researching [social networking site (SNS)] photos of those suspected of offences is becoming commonplace. An emerging challenge when such evidence is revealed is that the witness’s initial SNS identification contaminated subsequent formal identifications.[37] McCullough demonstrates the emerging problems. M was charged with robbery and evidence included M’s presence in the vicinity.[38] However, proof of M’s involvement depended entirely on the identification by W. W had searched M’s Facebook account after a friend told him it “sounded like something like … [M] would do.”[39] W identified M from the profile as the robber. W subsequently identified M in a video identification procedure. It was argued that the Facebook identification was “unsatisfactory and unreliable” and contaminated the subsequent procedure.[40] In response, it was argued that the Facebook identification was no different to a street identification. With respect, there are considerable differences. With many SNS identifications a witness will be directed to search for a particular individual. Although it was claimed W “looked at a photograph of the appellant and also photographs of other individuals and groups of people”,[41] there is clearly a danger of predetermination with SNS identifications.
(Emphasis added; some footnotes omitted)
[36] O’Floinn and Ormerod, ‘Social networking material as criminal evidence’ [2012] Criminal Law Review 486, 500.
[37] H [2009] EWCA Crim 1453 at [34] and [37], and McCullough [2011] EWCA Crim 1413, [9]. See also, for example, Jenkins [2011] HCJAC 86, where A initially identified SPJ, having seen a photo of him on Bebo, but subsequently claimed this identification was flawed, and that the true perpetrator was JJJ.
[38] CCTV footage captured images of McCullough with R, who admitted theft. R claimed McCullough was not involved in the subsequent robbery, which took place elsewhere.
[39] McCullough [2011] EWCA Crim 1413, [6].
[40] McCullough [2011] EWCA Crim 1413, [9].
[41] McCullough [2011] EWCA Crim 1413, [6].
So called “Facebook identifications” have none of the safeguards which accompany a properly executed formal identification procedure conducted by the police. Purported Facebook identifications from group photographs are particularly dangerous in that they present a seductive and deceptive air of being a plausible identification but in fact rarely involve a group of people each having similar features to the accused; they suffer from “foil bias” as discussed above. Consequently, if a suspect with similar features to the real offender is depicted in a photograph of a group whose other members lack those features, the suspect will likely be identified by a witness as the offender in the fervour of the superimposed “Facebook chat” and the pressure of the moment. The displacement effect will then later proceed to erase from the memory the subtle differences between the real offender and the person identified. Once again, there is the real danger that this is exactly what occurred in the present case in relation to the witness Ms Wright as well as the victim himself. As O’Floinn and Ormerod explain:
In McCullough our concern arises not only because W refused to adduce photographs which rendered the Facebook identification unreliable ... What renders the procedure unsatisfactory is the combined lack of safeguards. It may well be advisable for investigating officers to ensure descriptions from eyewitnesses are taken as soon after the crime as possible, and to warn against private SNS identifications. If a suspect is brought to the attention of a witness, that witness ought to contact the police for the arrangement of a more formal identification process. In reality, of course, the temptation for the witness to log in and view the individual’s profile may be too great. We are not suggesting that when this happens, the lack of safeguards to prevent against mistakes ought automatically to result in the evidence being excluded. However, since the identifying witness could have spent days viewing SNS photos of the alleged perpetrator, one may question how reliable any subsequent formal identification actually can be. (Emphasis added)
Of course, the position is made even worse when, as occurred in the case of the present victim, a person is actually given the name of the man asserted by others to be the offender and then locates in Facebook a photograph of a group of people, one of whom is tagged with that name. If the appearance of that tagged man is not obviously inconsistent with a memory the person actually has of the actual offender, a “Facebook identification” is highly likely to follow. That likelihood can only be increased in the circumstances of the present case where the victim had been drunk at the time of the assault and, at the time of the so called Facebook identification, was in the throes of a distracting hangover and pain resulting from his injuries and was harbouring a visceral (and justified) grievance against his attacker.
PART FOUR: THE POLICE INVESTIGATION
It is the case for the appellant that the police investigation, or lack thereof, at its various stages was a major contributing factor to a result of contaminated and practically worthless identification evidence upon which a conviction cannot safely be based.
The police investigation at the scene of the assault
The appellant submits that there are a number of aspects of the police investigation at the scene of the assault that were not only inadequate but in fact considerably exacerbated the infirmities of the identification evidence of Ms Wright and Mr Hurley.
In examination-in-chief, Constable Perks stated that he was the officer in charge of the investigation and that he had arrived at the scene with Constable Wood just before midnight on 9 October 2010. Constable Perks said that at the scene he spoke to the bus driver and to the victim before he left for hospital and that he took their details to obtain statements at a later time. He stated Constable Wood took everybody else’s details but that neither officer took any statements. The following important passage of evidence then occurs:
QWere you provided with any other information that would provide follow-up investigation as to who the offenders were in regard to this incident?
AYes. The victim stated that he was on a work night out and that one of the female parties present had been in an argument with him, and he actually said at the time that one of the offenders was her boyfriend.
QDid he provide a name of that offender?
ANo.
QDid he provide you with a description of that male?
A Not at that time, no. (Emphasis added)
Before Mr Hurley left the scene and before his memory was contaminated by later conversations with others who had been at the scene and by looking at photographs on Facebook, he had stated that one of the assailants was the man now known as Mr Daley. The significance of this becomes apparent below.
Constable Perks was rigorously cross-examined as to why only names and addresses and no statements were taken from the witnesses at the scene.
QWhy weren’t statements taken on the night? Their names and addresses were taken?
AYes. I don’t recall. The only thing I can think of is that due to the resources at the time, we weren’t in a position to do that.
Q What resources?
AThe police resources, that we didn’t have enough people to take statements at the time.
QYou could have taken them, didn’t need too many people. The victim went to the hospital?
A Yes.
QBy ambulance? You didn’t have any offenders there, so you had no follow-up as far as that goes?
A No.
Q Why didn’t you just take the statements then?
A Too much time has passed for me to be able to answer that question.
Later appears the following passage:
QWhen you attended at the bus that night, was it your understanding that apart from the bus driver, all the others were, had been – sorry, all of them including the bus driver, had been on the bus? That the victim was one of those on the bus and had got off and that’s where the assault occurred?
AYes.
QThat was your understanding?
AYes.
QAnd it was your understanding that none of the people who had attended there, but not on the bus, had all gone?[42] That was your understanding?
AThat’s correct, yes.
QSo everyone there was potentially an eyewitness to this incident?
AYes.
QAnd on that night, you didn’t take one statement?
ANo.
[42] This question as reported appears garbled but clearly referred to the fact, accepted on all hands, that by the time the police arrived the persons in the bus were all present and that the members of the group of males which included the two assailants were all absent.
Still later appears the following passage:
QDo you know if Constable Wood took any statements on this night?
ANo, he didn’t, he was with me.
QSo whilst he may have recorded some names that were there, as far as you were concerned, he didn’t take any statements?
ANo, he didn’t.
QAnd you know that because you were standing with him or because you’ve spoken to him since or checked his notebook or all of the above?
AI know because I was – well both really. We were together the whole time that we were there and we did the same thing.
QIn your mind what you had seen and heard from the people at the scene, an assault had occurred; it was just a question of who by?
AYes.
QYou say you haven’t found it appropriate to have taken statements at the time or followed up with any identification as to who committed this assault?
AI think at the time due to people being intoxicated and upset, I thought it more appropriate to take statements at a later time and that’s why we wouldn’t have done it at that time or. (Emphasis added)
Still later appears the following passage:
QWhen interviewed, Brenton Strauss said he, in effect, didn’t know what you were talking about with this incident, didn’t he?
AThat’s correct, yes.
QTo start with, and then he didn’t answer any questions?
AYes.
QExercised his rights after that?
AYes.
QAnd even then, which is only a couple of weeks after this incident, no more statements were taken, no more identification parades were done or anything. Is that right?
AThat’s correct, yes.
The failure by police to take a description of the offenders at the scene
There was a very serious failure in the investigation process in that neither police officer while at the scene took a description of the offenders from the victim or from any of the witnesses.
The taking of a full description of the offender(s) at the earliest possible time in an investigation in any case where there may be a question as to the identity of the assailant(s) is absolutely critical, and even more so in the current era of social media. Such a description forms the benchmark against which subsequent evidence of identification evidence must be measured and checked and should also form the basis of a selection of a group of appropriate persons or photographs in an identification parade or formal photographic identification procedure should that be needed.[43]
[43] See the discussion of “foil bias” above.
If a description is taken “later”, the accuracy and legal effect of that description may be compromised by several factors. One is loss of memory, such process of loss and decay commencing from the time of the imprinting of the memory. Another is the possibility of positive contamination of memory through such things as subsequent discussion between each witness before their initial and independent memories, if any, of a description is contemporaneously recorded.[44]
[44] Obviously, a description should be so recorded by police that it is later quite clear when and in what circumstances the initial description took place.
I will deal with these and associated matters in greater detail below, but for the moment it suffices to emphasise that, far from being theoretical, such matters were of high importance in the present case.
As an example, Ms Wright and Mr Hurley both stated in Court (long after the event) that the appearance of the offender (who they asserted was the appellant) appeared “the same” at the time of the assault as depicted in the Facebook photograph by which they identified him. Ms Wright was specifically asked by the prosecutor at trial as to whether there were any differences between that photograph and when she saw the defendant on the night of 9 October 2010 and she replied, “The only difference is his clothes”. She was asked again:
QFrom looking at that photo, are there any other differences between when you saw him and when you saw him in this photo?
A No.
QFrom looking at that photo and looking at the defendant in court, are there any differences between this photo and when you saw him on 10 October, to him in court today?
A No.
From the prosecution perspective, it must be appreciated that there is virtually no force in such evidence being led by a prosecutor if there is no early benchmark description of the offender against which the bland statement “the same” can be checked.
At the same time, and by the same process of reasoning, the defendant is unfairly denied the availability of that critical check. He is effectively left simply with the immutable and circular assertion: “the man in the photograph looks the same as the offender who looks the same as the man in the photograph”.
Far from being theoretical, there is a real question in the present case as to what was the precise appearance of the offender now alleged to be the appellant on the occasion in question. An important aspect of the description of the relevant assailant given by Mr Browne[45] differs markedly from the appearance of the appellant in the Facebook photograph(s). Mr Browne described the assailant alleged to be the appellant as having “Quite long [hair] almost to the shoulders” whereas the Facebook photograph shows the appellant having very short hair.
[45] Mr Browne was asked to give a description as part of his undertaking the formal identification process.
Mr Browne’s description is a quite important matter and needed to be carefully addressed because it evinced a marked inconsistency between himself on the one hand and Ms Wright and Mr Hurley on the other. There is, of course, a natural tendency to prefer the identification evidence of two witnesses to that of one, but that is a very dangerous approach to take in any case of multiple identifications[46] and was particularly problematic here.
[46] There is a wealth of authority including decided cases, legal academic writings and scientific research referred to below warning of the dangers of wrong identification by multiple witnesses.
The very important factor of potential contamination of evidence by communication between the identification witnesses (excluding Mr Browne) was present in a rather extreme form. Mr Browne was the only one on the bus who was not a member of the workplace group or part of the wider social network of the witnesses. Only he was not subject to the contaminating effect of the chatter between those persons that commenced at the time of the incident and only he did not view photographs on Facebook depicting the appellant as having very short hair.
The failure by police to subsequently take statements from relevant witnesses
The appellant submits that the police failed to take statements from a number of persons who were potential witnesses during the course of the investigation. Perhaps the most glaring example was that of Ms Ghanem who witnessed the assault and participated in a “joint identification” with Ms Wright by reference to Facebook at about 2am on 10 October 2010. Ms Wright’s evidence on this point culminates in: “And then we just knew, identified the guy that Matthew was … with around the bus and then we didn’t look any further”. No satisfactory explanation for that failure was offered at trial. The cross-examination of Constable Perks was as follows:
QI haven’t got statements from Piccolo, Ghanem, Karoussis and Hannaford; all four of them. Does that mean that all four don’t want to cooperate or.
AI believe not want to cooperate or I wasn’t able to contact them.
QYou had addresses and phone numbers of all of them, didn’t you?
AYes.
QSurely with your resources you would have been able to find them in the last 13, 15 months?
AA lot of this is actually been brought to my attention quite recently, so I haven’t had 13 or 14 months to make those inquiries, but I have made efforts to try and contact them.
QWhen did you do that, how recently?
AIn December last year.
QAnd you followed that up in January as well?
AMost of January I’ve actually been away on leave.
QThese were eyewitnesses to a serious incident and you haven’t got statements from them?
AYes.
According to Constable Perks, his partner on the night, Constable Wood, took Ms Ghanem’s details only and a statement was never taken.
The failure by police to conduct formal photographic identification procedures
In relation to both Mr Hurley and Ms Wright, the police failed to carry out a formal photographic identification procedure and simply relied upon what the witnesses had said about their identification from Facebook photographs.
This was an extremely serious error by police in the investigation process. Constable Perks was asked about that failure in cross-examination and stated, “I queried that with a previous prosecutor and they said that it wasn’t required due to the Facebook ID”.
This advice was quite incorrect. The police had an assertion by Ms Wright that she had, together with Ms Ghanem, identified the appellant from a photograph on the appellant’s Facebook page. The high degree of suggestibility likely to be involved in such an identification was obvious. Equally obvious was the chasm between the uncertain, unmonitored circumstances of “Facebook identifications” and, by contrast, the structured nature of a formal photographic identification process in which a certain number of appropriately similar foils are used in the context of the giving of strict instructions to the witness that a picture of the offender may, or may not, be present in the array.
In circumstances such as the present, it was absolutely vital that a formal identification process be carried out as soon as possible. It is not good enough to say that the ultimate value of a resultant identification might be lessened by the assertion of the displacement effect; so it might, but such an identification may at least negate the suggestion that the witness would not have been able to pick out the appellant from the requisite number of similar foils in a formal identification process. However, the real problem here is that the appellant forever lost the chance of the witness contemporaneously demonstrating that she was unable to satisfactorily identify the appellant in such a formal identification process. Thus, King CJ stated in R v Britten:[47]
There seems to be a tendency on the part of police officers to suppose that, because judgments of courts have pointed out that the value of identification by means of a line-up is impaired by prior identification from photographs, there ought not to be an identification parade following identification by means of photographs. That is not so. The value of such identification may be impaired, but it still possesses value. An identification parade would give an honest and careful identifying witness an opportunity to correct a mistake in the identification from photographs. Evidence of identification at an identification parade following identification from photographs is clearly admissible and probative although the probative force might be thought by a jury to be weakened by the fact that the witness has previously seen a photograph: R v Doyle [1967] VR 698 esp at 701. An identification parade held in an early stage would have given Mrs Sauer an opportunity to pick out the appellant in the flesh and would have removed some of the misgivings which one must feel in consequence of the disparity between the appellant’s height and that estimated by Mrs Sauer to the police.
(Emphasis added)
[47] (1988) SASR 567, 571.
Although it is unnecessary for the making of the above point, it is notable that the possibility of a witness to that assault being unable to so identify the appellant in a formal photographic identification procedure was very real in the present case. The bus driver, Mr Browne, was in the best position to observe the incident in progress, being perfectly sober and watching events progress as he drove into the car park and brought the bus to a stop. He was the only witness to participate in a formal identification process and he selected two males neither of which was the appellant.[48]
[48] There was no photograph of Mr Daley in the array.
The fact that Mr Browne took part in such a process also confirms that the police were well capable of organising such a procedure in the prevailing circumstances and in fact did so. The “no time, no money” excuse will simply not wash. The same slide show used with Mr Browne could easily been used with Ms Wright and Mr Hurley.[49]
[49] Separately, naturally! It is, of course, usually necessary to vary the position of the offender in the array to counter the possibility of one witness informing another of the position of the offender.
A critical point must be made here in plain and unmistakeable terms. A police officer with a witness asserting a Facebook type identification may well be loathe to jeopardise what he already has by conducting a formal photographic identification procedure which may take his position backwards. However, we are not here talking about a civil action between two people over an amount of money. What is here involved is a criminal prosecution involving identification evidence, an area notoriously productive of miscarriage of justice.
The need to conduct a formal photographic identification procedure is every bit as great in the case of a witness who asserts having made a “Facebook identification” as in the case of a witness who has not done so and it simply must be done. If the witness cannot meet the known and objective standards of the formal photographic identification procedure as required by the decided cases and by SAPOL directives, then police must accept that result with good grace.
The strange case of the non-investigation of Mr Daley
Finally, I turn to the strange case of the complete non-investigation of Mr Daley. As stated above, the case at trial was that the assault was an act of revenge. Two of the passengers, Ms Wright and Ms Mertin, each gave evidence that they had previously met or seen Mr Daley in company with Ms Krys and that they saw him nearby in the car park when the bus first arrived there. It was the prosecution case that Mr Daley complained to Mr Hurley about the insult to his girlfriend (“I heard you said something about my girlfriend”) thus explaining to Mr Hurley the reason for the assault that was to immediately follow. On the available evidence it appeared that Mr Daley was either one of the assailants or that he was part of a joint enterprise to assault and/or an accessory at the fact, encouraging the commission of the offence by his associates.
One would not be surprised at Mr Daley not being called as a witness at a trial of the appellant if he were also a prospective defendant. However, what does come as a great surprise is the revelation in the following cross-examination of Constable Perks, the officer in charge of the inquiry, that no steps have ever been taken to approach Mr Daley at all:
QDid you speak to Daley?
AMatthew Daley is that?
QYes.
ANo.
QAny reason?
AHe’d actually attended Golden Grove Police Station the same day that the photo was handed in and he actually spoke to staff at the station, stating that he’s receiving threats from the victim’s mother, but other than that, as far as I am aware he hasn’t been spoken to by any police in relation to this matter.
QAny reason why not?
ANo.
QJarrad Hurley the victim, initially believed that Daley was the offender, didn’t he?
AInitially, yes.
QBut still no follow-up was done with him?
AI think from what Matthew[50] said is that he – was presumed that the offender was Matthew Daley because he had been told that Ashley Krys’s boyfriend is Matthew Daley so he just made the assumption that the offender was Matthew Daley.’
QDid you take any of statements from Hurley?
AI did, yes.
QIs it your understanding that he knew of Daley and had seen him before this incident?
ANo. (Emphasis added)
[50] The witness clearly means to say Mr Jarrad Hurley.
I will deal with the inconsistencies and infirmities of the identification evidence of Mr Hurley including on the topic of Mr Daley below. For the moment, I simply note the strange, almost bizarre, situation that neither the officer-in-charge nor any other investigating police officer ever made any attempt to speak to Mr Daley about the matter. There is clearly no excuse for this.
The only two circumstances that Constable Perks mentions in the passage of cross-examination above as apparently relevant to his failure to approach Mr Daley are these.
First, Constable Perks stated that Mr Daley had “actually attended Golden Grove Police Station the same day that the photo was handed in and he actually spoke to staff at the station, stating that he’s receiving threats from the victim’s mother”. (The day that the photo was handed in was 10 October 2010[51]). We know from Constable Perks that it was not he that Mr Daley then spoke with and indeed that it was “staff” at the station as distinct from a police officer. Why second-hand information that Mr Daley was complaining of threats from the victim’s mother should have deterred Constable Perks from speaking to Mr Daley is completely beyond me.[52]
[51] Exhibit P10.
[52] I might add that that snippet of information about the victim’s mother might well have led to inquiries by both prosecution and defence as to the contamination of evidence generally and in particular as to what Mr Hurley had said to his mother as to his belief that Mr Daley was the assailant. However, the investigation of the case never rose to anywhere near this level on either side.
Second, Constable Perks stated that when he was taking Hurley’s statement, Mr Hurley said that he had previously “presumed that the offender was Matthew Daley because he had been told that Ashley Krys’ boyfriend is Matthew Daley so he just made the assumption that the offender was Matthew Daley”.
It is important to understand the precise sequence of events here. Constable Perks gave evidence that initially at the scene of the assault Mr Hurley “actually said at the time that one of the offenders was her [Ms Krys’] boyfriend”.[53] Constable Perks gave further evidence that on a subsequent occasion he took a statement from Mr Hurley in which he explained his previous statement on the basis that he had previously presumed that Mr Daley was an assailant “because he had been told that Ashley Krys’ boyfriend is Matthew Daley so he just made the assumption that the offender was Matthew Daley”.[54]
[53] See extract above from T58.
[54] See extract above from T71.
But even if we entirely accept that Mr Hurley did make that latter statement to Constable Perks, that does not in any way obviate the need to speak to Mr Daley. If Mr Daley was not one of the two assailants, he had been seen at the scene[55] and was the prime suspect as the person who had spoken the words, “I heard you said something about my girlfriend”;[56] who had organised the meeting of the bus by a group of men;[57] who had peered through the windows of the bus trying to locate Mr Hurley;[58] and who had some form of motive for an act of revenge. There was strong and reasonable suspicion that he was at the least an accessory to the assault. At the very least, Mr Daley was apparently in a prime position to know the identities of the two persons who did assault Mr Hurley, a matter of some interest to police, one would have thought.
[55] By Ms Wright and Ms Mertin.
[56] Evidence of Ms Wright, T79, 87, 99; Evidence of Mr Hurley, T34, 54 (but see the analysis of Mr Hurley’s evidence below).
[57] The witnesses describe men walking toward the bus as it entered the car park and then looking through the windows of the bus, no doubt for Mr Hurley.
[58] Evidence of Ms Wright.
There is no valid reason why investigating police did not approach Mr Daley and attempt to speak to him in detail about the incident (after giving him an appropriate caution of course). The failure to do so is symptomatic of the poor investigation that occurred in this case. I will return to the effect of the inadequacy of the investigation below.
PART FIVE: THE IDENTIFICATION EVIDENCE OF MR HURLEY
The appellant submits both that there are serious infirmities in the identification evidence of Mr Hurley and errors in the Magistrate’s approach to aspects of his evidence, including: his “Facebook identification” of the appellant, the physical circumstances surrounding his original observations, his prior inconsistent statements, and the inherent defects in his “in Court” identification of the appellant.
The circumstances surrounding Mr Hurley’s original observations
There are a number of intertwined matters relevant to the circumstances surrounding Mr Hurley’s original observations of his attackers which have a cumulative effect upon the reliability of his evidence. Such matters include his state of intoxication, his ability to observe the features of the first assailant (a stranger to him) and the prevailing lighting conditions.
Mr Hurley’s state of intoxication
Mr Hurley’s state of intoxication is a very important matter. Drinks from the bar were free and it is clear that Mr Hurley was taking full advantage of that fact. He was unable to be specific as to what he had drunk, or how much, but admitted that he was “very drunk” and “had drunk way too much”. Indeed, he was the only one who had had to ask the bus driver to stop on the way to Tea Tree Plaza so that he could go to the toilet. He had a hangover the next day.
Ms Mertin described his condition at the end of the night as “extremely intoxicated” and agreed that he was obviously the most affected out of all of them. Ms Wright stated that at the end of the night he was “quite drunk” and that “he did not have full balance and could not walk in a straight line”.
Mr Hurley initially stated in examination that up to the point when he insulted Ms Krys he had had about ten drinks, mainly Bourbon and Jägermeister. However, he was not asked in examination as to how many more drinks that he had after that and there was no suggestion by him that he stopped drinking at that time. He was asked in cross-examination as to whether he may, in addition to the various beverages listed above, have had a number of beers at one stage of his drinking. (These questions were no doubt put on the basis of the evidence of Ms Wright who stated that at one stage she was with him during the evening, at which time she saw him drink about five to eight cans of beer). His response was as follows:
ABeers, not from memory. I’m not big beer drinker, so I don’t think I would have, but –
Q So it would be wrong to say that –
A – I may have done, that’s the thing. I very well may have done.
Q Because you had too much, you can’t even remember what you drank, is that right?
ADo most people sit there and write a list of what they drink through a day or? My estimate was about that much and could have been 12, could have been 13. It was not anymore than 15 and I could have had a couple of beers in there as well. Hey, you know, it was a free night. I can’t list every single – like I said, like I said to her, I never said I definitely had two shots, definitely had you know, only Jim. I said that was the majority of what I was drinking from memory.
Q Eight cans of beer, you would be able to remember?
AEight cans of beer? Well eight cans of beer, is that what they said on the statement that I had eight cans of beer?
Q No I am just asking you if you can remember drinking eight cans of beer?
AI’m not a beer drinker, so no. So that’s interesting to me, wherever that comes from.
Q So you now say you didn’t have any cans of beer?
A I could have done.
Q You’re not a beer drinker?
AEight cans of beer – well I’m not a big beer drinker, but that’s not to say I never drink beer and yeah. I mean to be honest with you, I never sat there and thought – you know, this is the first time since the whole thing that I’ve really sat there and thought about exactly what I drunk that night and it’s 14 months later, you know, so hey, excuse me if I don’t know exactly what I drunk.
Mr Hurley’s evidence as to the general lighting conditions
A further cumulative factor relating to Hurley’s ability to observe the features of the first assailant was the state of the general lighting conditions.[59] In examination Mr Hurley gave this evidence:
[59] For an interesting discussion of the use of measuring devices to assess the level of illuminance at night and hence the reliability of identification evidence, see: Coyle, Field and Miller, ‘The blindness of the eyewitness’ (2008) 82 Australian Law Journal 471, 473.
Q What was the lighting like at that location?
AIt was – it wasn’t – how would I explain it. It’s fairly well-lit. It is a fairly well-lit carpark, but that is, I wouldn’t say that it is perfectly light, you know what I mean. It wasn’t dim though.
Q Could you see the features of people who were speaking to you?
A Yes, definitely.
Q If I was to say you couldn’t see very well, that would be wrong?
A That would be wrong, yes.
QSo in a statement that you gave to Constable Perks on the night and you said ‘I couldn’t see very well’, that would be a lie by you?
A I wouldn’t call it a lie, it was the way how I described it at the time.
QDid you tell Constable Perks ‘It wasn’t very well-lit, so I couldn’t see very well’?
AWell not very well-lit in comparison to daytime, is what I would say, yes. It’s in the middle, isn’t it, like I said.
QSo do you agree that you told Constable Perks ‘It wasn’t very well-lit so I couldn’t see very well’?
A Well yes, you’ve got the statement there.
Q Do you want to read it or do you accept what I say?
A I accept what you say, you’re not going lie. (Emphasis added)
There can be no doubt that there was here, at the very least, a substantial change in emphasis in describing the lighting conditions and it is in line with the trend elsewhere observed to portray a state of clarity of the identification evidence which is belied by a systematic consideration of the weaknesses of the witnesses’ evidence including the various prior inconsistent statements.
Mr Hurley’s restricted ability to observe the features of the first assailant
It is very important that the matters of both Mr Hurley’s intoxication and the poor lighting be viewed cumulatively with the further fact that he was pushed to the ground by two people and then attacked in circumstances where he was covering his face to avoid blows or mitigate damage in that area. He refers to having had his knees up “trying to protect what I could protect, and my hands kind of around my face, swirling in a way just to try what is – overcoming, just to try and knock it away … my mind wasn’t on what they were saying”. He also stated:
It was funny because time was distorted when it happened. I was very – just in such a state of disbelief that, like, all things could have happened that could have passed my notice.
In so far as Mr Hurley says that he had seen the two males standing together before they pushed him to the ground, that evidence is hopelessly compromised by his inconsistent and confusing evidence as to the identity of the second man, a matter to which I now turn.
Mr Hurley’s evidence concerning Mr Daley.
A major example of the work of contamination of the memory and a progression from contemporaneous uncertainty to purported certainty at trial is afforded by Mr Hurley’s evidence concerning the man, Mr Daley. This is a matter that both requires and repays detailed analysis.
Mr Hurley knew the face of Mr Daley prior to the incident
The structure of the prosecution case at trial has been referred to above. Importantly, Mr Hurley stated in examination that at the time of the incident he had previously seen Mr Daley several times, that he definitely knew his face and was able to describe him as follows:
AProbably about five foot anywhere between five/eight and five/10. At the time that I remember him, he was kind of slim to muscular or kind of an athletic kind of build. I know he had tattoos. Kind of had a bit of a – wouldn’t call surfie like, I don’t know how to explain it. I know he had short, light brown hair. Light brown to bronze. I’m kind of colour-blind in a way. It is hard for me to distinguish. It was light brown to blond, that is how I would describe him. I definitely know the face when I see it. I know faces when I see faces. (Emphasis added)
Mr Hurley’s position at trial was that he did not see Mr Daley at the scene of the assault
In evidence-in-chief Mr Hurley described being approached by the two males (who became his two assailants, “male 1” and “male 2”) in circumstances where he could clearly see their faces. He asserted that male 2 – to whom he refers as “the skinny guy” – said “I heard you said something about my girlfriend”:
AI got off the bus and I walked a few paces towards the direction of the Interchange, so had my back to the bus and anybody that might be there and all that kind of thing and then I became aware that there was people behind me. I don’t know, maybe I heard them, but I turned and one of them said ‘I heard you said something about my girlfriend’ and I am like – you know.
QI will just stop you there. When you say ‘I heard you say something about my girlfriend’, which direction were you facing to these people when you heard that comment?
A I was looking at them when they said that.
Q So you were looking at them?
A Yes.
QDid you see who? When you turned around and were facing the people, how many people were there?
A There were two.
Q Is that the total amount of people who were close to you at that time?
A Yes.
QWhen you were looking at them though, you heard that comment, did you see which of those two males made that comment?
AYes, it was the skinnier guy who – I mean, I haven’t seen him before or since, so that is why I couldn’t place why that was said.
Q So of the two males, the skinnier guy said the comment?
A Yes. (Emphasis added)
As stated above, Mr Hurley well knew Mr Daley’s face. He stated very clearly that it was male 2 (the skinny guy) who had stated the words, “I heard you said something about my girlfriend” and that he had not seen the skinny guy before or since then. Indeed in examination-in-chief, Mr Hurley stated that he never saw Mr Daley at the scene of the assault:
Q… Did you see Matthew Daley present at any time when the bus was stopped at Tea Tree Plaza?
A No, I didn’t see him. …
Quite clearly, Mr Hurley’s position at trial was that it was “the skinny guy” who uttered the girlfriend comment and that “the skinny guy” was not Mr Daley.
The course of the assault
Mr Hurley stated that, immediately after the words were uttered, he was pushed to the ground by both males and then punched solidly by male 1 with some kicking by male 2. Thus, he stated:
QThis other male who you’ve described as the skinny guy, can you recall exactly how he assaulted you?
AHe was taking kicks at me and I know he helped throw me to the ground and I think to an extent he kind of watched over and maybe sly kicks and things like this.
…
Q Did this skinny guy strike you to the face in any fashion?
ANot from memory. He very well could have. Things moved. It was funny because time was distorted when it happened. I was very – just in such a state of disbelief that, like, all things could have happened that could have passed my notice.
(Emphasis added)
Mr Hurley had initially stated to police that Mr Daley attacked him
However, it transpired that Mr Hurley had originally stated to police that Mr Daley was one of his attackers. As noted above, Constable Perks gave evidence that the victim stated at the scene that he was on a work night out and that one of the female parties present had been in an argument with him, and “he actually said at the time that one of the offenders was her boyfriend”. However, as also noted above, by the time of later giving a statement about the matter (after talking with other witnesses and looking at Facebook photographs), Mr Hurley was asserting that he had previously “presumed” that Mr Daley was one of his assailants.
This evidence gives rise to important questions going directly to the reliability of Mr Hurley’s identification of the appellant. Mr Hurley was asked the following questions in cross-examination:
QWhy did you say in your statement that you initially presumed that Matthew Daley was your attacker?
ABecause of the first comment, the comment of ‘I heard what you said about my girlfriend’, you know. Obviously in that state I’m like, what’s going on here? You know, that’s why.
QThis was good lighting conditions, according to you now. You had seen Matthew Daley a few times before and you had actually thought that Matthew Daley was your attacker?
AYes well, I literally did because that’s – from his comment, from the reaction of the girls as well, it was just like, and I was still up in the air about – whoa, what just happened to me? I never said – you know, and that’s the thing, it was just like how I reacted to it, that’s what I thought.
QThe lighting obviously wasn’t very good because you got the wrong person, you actually thought it was Matthew Daley?
AI thought he could have been one of the them. Like I said, there was one guy up, he was to the side, not on top of me, taking kicks and doing little things like this (INDICATES) and yes sure, it wasn’t extremely great lighting, you know.
QYou say in that, in the statement you originally gave, that you thought it was Matthew Daley who first approached you?
A I did, by the comment.
Q And he got how close to you when he was making the comment?
AIt was the three metres, it was between here and there (INDICATES) and it was, you know, I was more worried about, oh shit. I was thinking more about the situation, you know.
QSo even though you had seen Matthew Daley before and he was only a few metres from you, you now say that it was Brenton Strauss?
AWell there was two people there and one was similar, the other guy was kind of skinnier and muscular too, you know. Sure it wasn’t that greatly lit, you know, but when somebody is on top of you, punching you and you see them, its different to somebody a few metres away in not so great lighting, you know. I mean, it’s not as well-lit as here of course, but you know what I mean. There’s a difference. Somebody’s on top of you with their face in your face punching you, is different to if somebody said something and then just danced around you, kicking you. I had a more intimate, up close view of Brenton.
QYou agree in essence that the reason that you had looked up for Brenton Strauss, and forgetting about whether you looked up Brenton Strauss’s Facebook or Matthew Daley’s Facebook, the reason why you were looking for Brenton Strauss was because you had been told that, that was the person who had assaulted you?
A Yes.
Q Even though before that, you believed it was Matthew Daley?
A I believed he could have been one them. I certainly –
Q Who you had seen a few times?
AYes I did, but the other guy was fairly similar, you know. A lot of guys have shaved heads, a lot of guys have shaved, short kind of that coloured hair. A lot of them have tattoos, you know. When it comes to Matthew Daley in not great lighting, he could look like a lot of people in my estimation. You know, there’s a lot of people to that description, to that type. And the comment, when I heard that, add all those things together, that’s the picture I got in my head.
(Emphasis added)
The problem, of course, is that it is natural for people to reason that it is unlikely for two or three different persons all to make the same mistake but that line of reasoning makes the critical (but not unusual) mistake of assuming that for a number of witnesses to each make a mistake in separate identifications they must do so independently of each other, a circumstance which appears to make such simultaneous mistakes unlikely.
However, in fact such mistakes do not occur independently of each other. The phenomenon of multiple misidentifications is referred to in the scientific literature as the “relative judgment” problem. Put shortly, a number of witnesses in the same case may wrongly identify the defendant simply because he is indeed the one most resembling the real perpetrator. For example, the Virag case involved eight persons mistakenly identifying Virag from a line-up, including a police officer who testified that Virag’s face was “stamped on my memory” from the event;[109] his language was as emotive as it was mistaken. As Glidewell LJ, Hodgson and Buckley JJ pithily observed in R v McGranaghan: [110]
… the identification by Mrs F of the appellant as her assailant was most probably mistaken and the identifications by Mrs G and Mrs L cannot safely be relied upon as being accurate. Nevertheless, since all three ladies did identify the appellant as their assailant, we assume that he and the true assailant must be reasonably similar in build, general appearance and accent, otherwise it is probable that the ladies would not have pointed him out. (Emphasis added)
[109] Re, ‘Eyewitness Identification: Why So Many Mistakes?’ (1984) 58 Australian Law Journal 509, 509.
[110] [1995] 1 Cr App R 559, 574.
Of course, Lord Widgery CJ had previously stated in the seminal decision of R v Turnbull:[111]
First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. (Emphasis added)
[111] [1977] QB 224, 228 (For the Criminal Division of the Court of Appeal constituted by five judges).
The problem has been referred to in Australian decisions. Thus, in 1933 in Craig v The Queen,[112] Evatt and McTiernan JJ stated:
It seems to us, that, in this passage, his Honor indicated to the jury that the absence of corroboration might be balanced by “a sufficient number” of other witnesses. With all respect, this seems to us to amount to an invitation to the jury to pay regard to the mere fact that four persons gave their sworn opinion at the trial that the driver of the car was Craig and to consider the matter upon the footing that the evidence of each witness acquired additional probative value by reason of the presence of the testimony of the other three. This was calculated to induce, and quite possibly had the effect of inducing, the jury to aggregate rather than to analyse the evidence of these witnesses and to diminish the significance of the failure of other witnesses to identify Craig.
(Emphasis added)
[112] (1933) 49 CLR 429, 449. In Craig v The Queen (1933) 49 CLR 429, Evatt and McTiernan JJ noted that in Oscar Slater’s Case there was a strong warning given – but the jury nonetheless convicted.
The matter was considered at some length in the later influential decision of R v Burchielli,[113] where Young CJ, McInerney and McGarvie JJ stated:
Now it often happens that two pieces of evidence, each in themselves unconvincing, will in combination produce a high degree of persuasion of a particular conclusion. The reason is often that the coincidence of the two pieces of evidence would be unlikely if the ultimate fact or conclusion had not occurred. But this is not true of identification evidence. Two unsatisfactory identifications do not support one another in the same way as two primary facts may lead to the conclusion of an ultimate fact.
(Emphasis added)
The above strictures apply a fortiori in the present case
[113] [1981] VR 611, 616.
Of course, the above discussion of the “relative judgment” problem takes place in an assumed context of the witnesses independently performing their identification alone and without prior discussion between themselves or having previously viewed photographs said to be of the offender. It is in this relatively antiseptic context that we find the strict warnings above being made.
The present case is highly toxic by comparison. Here the witnesses are not only subject to the usual “relative judgment” problem, but they:
·are presented with photographs depicting the appellant in association with the known likely co-offender, Mr Daley, and three other individuals dissimilar in appearance, rather than with a fair array of foils;
·are saddled with the information that the appellant and Mr Daley were linked by at least friendship and almost certainly also the fact that they are cousins;
·are workmates who have constantly chatted about the assault since it took place; and
·in the case of Mr Hurley, positively told that “Brenton Strauss” was the assailant and then given the opportunity to look at a photograph of Brenton Strauss and Mr Daley on Facebook, with the respective names appearing superimposed on the respective images.
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.
The appellant submits that the Magistrate placed excessive weight on the in Court identifications made by Ms Wright and Mr Hurley and/or failed adequately to warn herself of their low probative value. The appellant points out that her Honour referred on some ten occasions[114] to the in Court identifications by Ms Wright and Mr Hurley in a way that appears to indicate that such identifications are to be treated as evidence entitled to positive weight and to be considered cumulatively with the other evidence in the case.
[114] In relation to Ms Wright at paragraphs [8], [17], [28], [29] and [43]. In relation to Hurley at paragraphs [7], [16], [18], [33] and [43].
The Magistrate was, of course, aware that in Court identification is of lesser value than an identification in a line up or formal photographic identification procedure and that it has deficiencies.[115] However, the only passage in which her Honour directly addresses the weight of an in Court identification in the present case is at paragraph [43] where her Honour said this:[116]
[43]As regards the dock identification of the defendant by Ms Wright and Mr Hurley; had this been the only evidence of identification of the defendant as one of the assailants, I would not have been satisfied beyond reasonable doubt of the identification of the offender, given the time since the offence. (Emphasis added)
[115] The Magistrate determined to give the in Court identification of Mr Browne no weight because of his identification of two persons in a formal photographic identification procedure, neither of which were the appellant. Her Honour also reproduced the following passage from the judgment of the Northern Territory Court of Criminal Appeal in Murdoch v The Queen [2007] NTCCA 1, [66]: “As was said in Davies and Cody v The King (1937) 57 CLR 170 and by Gibbs CJ in Alexander v The Queen (1981) 145 CLR 195, there is the danger that the witness will to readily come to believe, without any true recollection, that the person charged is the person whom the witness had previously seen particularly if the memory of the witness has become dim and there is some resemblance between the offender and the person identified”. (Emphasis added)
[116] Judgment at [43].
The words in emphasis cause me concern. They seem to mean that if the trial had been somewhat closer to the offence, her Honour would have, or at least might well have, been satisfied beyond reasonable doubt of the identification of the appellant solely on the basis of Mr Hurley’s and Ms Wright’s in Court identifications alone. The inference appears to be that her Honour’s starting point was that in Court identification evidence has substantial weight which may, however, be lessened by a substantial delay between the offence and the trial. Whether her Honour took that view because there were two identifying witnesses here is impossible to say, but it is not insignificant that her Honour nowhere directs herself as to the dangers of multiple misidentifications discussed above.
In my view the appellant’s criticism is warranted. In Court identification of the present sort will be of very little probative value (no matter how long after the date of the offence the trial takes place) because of the fact that persons who are being asked to identify the offender are highly likely to point at the defendant if he or she happens to be the only obvious candidate present. Thus, in Alexander v The Queen Gibbs CJ stated:[117]
Evidence given by a witness identifying an accused as the person whom he saw at the scene of the crime or in circumstances connected with the crime will generally be of very little value if the witness has not seen the accused since the events in question and is asked to identify him for the first time in the dock, at least when the witness has not, by reason of previous knowledge or association, become familiar with the appearance of the accused. The reasons for this were explained in Davies and Cody v The King.[118]
[117] (1980) 145 CLR 395, 399.
[118] (1937) 57 CLR 170 at pp 181-182.
In Davies and Cody v The King,[119] Latham CJ, Rich, Dixon, Evatt and McTiernan JJ had stated:
… where, before the occasion with which it is sought to connect the person accused or suspected, the witness has seldom or never seen him, experience has led the English court to look for the greatest care to avoid a mistake or prejudice. They treat it as indisputable that a witness, if shown the person to be identified singly and as the person whom the police have reason to suspect, will be much more likely, however fair and careful he may be, to assent to the view that the man he is shown corresponds to his recollection.
…
Similarly, if a witness is shown a single person and he knows that that person is suspected of or charged with the crime, his natural inclination to think that there is probably some reason for the arrest will tend to prevent an independent reliance upon his own recollection when he is asked whether he can identify him. This tendency will be greatly increased if he is shown the person actually in the dock charged with the very crime in question.
[119] (1937) 57 CLR 170, 181-182.
Of course, one may encounter discerning and discriminating witnesses who will be resistant to all such subconscious psychological pressure but the problem is that such persons do not wear badges identifying themselves. The Courts simply cannot make an assumption that any particular witness is resistant to such pressure. The danger is that any given witness may be subject to such pressure and that is why the Courts insist that police hold a formal photographic identification procedure governed by formal protocols rather than merely present a witness with one photograph.
It must be firmly appreciated that the danger of a misidentification by way of an in Court identification is in fact higher than that presented by the use of only one photograph by police. A witness may appreciate that the person in the photograph presented by the police officer may be a suspect for the offence, but a witness confronted with an in Court identification knows that the person is not just a suspect but the only person formally on trial. Such a witness will very likely consider that a failure not to agree that that is the offender may have dire ramifications for the trial itself, a degree of psychological pressure that many may find difficult to shrug off. With respect, I consider that her Honour’s directions fail to give adequate weight to these matters.[120]
[120] I should add for completeness that the low probative value of in Court identification in itself will not usually lead to its exclusion where it is led in conjunction with evidence of a previous identification. (See: R v Britten (1988) 51 SASR 567, 569-570; Jokic v Hayes (1990) 53 SASR 530, 536; Grbicv Pitkethly (1992) 65 A Crim R 12, 21). However, its purpose is usually a limited one. Thus, Duggan J (with whom Lander and Bleby JJ concurred) stated in R v Gorham (1997) 68 SASR 505, 508: “Where there is an out of court identification of an accused person the subsequent identification of that person in court is usually carried out to confirm that the person previously identified is, in fact, the person before the court. (Grbicv Pitkethly (1992) 65 A Crim R 12 at 21). In most cases where the dock identification is employed for this limited purpose it is little more than a formality. It is the out of court identification which is the critical matter for the jury's consideration”.
Failure to adequately direct as to further aspects of the identification evidence
In summary, the Magistrate did not direct on the following important matters discussed above:
·The failure of the police to take descriptions of the assailants from the witnesses when still at the scene;
·The failure of the police to ask Mr Hurley and Ms Wright to undergo a formal photographic identification procedure;
·The failure of the police to take statements from various witness at all;
·The various positive indications of the unreliability of Mr Hurley’s evidence;
·The prior inconsistent statements by Mr Hurley referred to above;
·The various positive indications of the unreliability of Ms Wright’s evidence;
·The prior inconsistent statements by Ms Wright referred to above;
·The need for caution in relation to the apparently “confident” evidence of identification; and
·The seductive effect of identifications by multiple witnesses.
The high degree of suggestibility inherent in the circumstances of the purported identification by Mr Hurley
Her Honour gave brief directions as to the matter of suggestibility but did not explain why Mr Hurley’s identification evidence retained sufficient weight to justify a conviction. I consider that her Honour’s directions were insufficient.
The high degree of suggestibility inherent in the circumstances of the purported identification by Ms Wright
The Magistrate seriously misdirected herself here as explained above.
The high degree of intoxication of Mr Hurley and other impediments to his vision and perception
The only directions given by her Honour were as follows:
[24] As regards alcohol, I note Ms Mertin had nothing to drink. Mr Hurley stated he was very drunk. Ms Wright said she had one drink on the cruise and that she was sober. Mr Brown, the bus driver was sober. I note there would also have been considerable confusion and tension at the time of the assault and I also note there would have been significant movement of the various parties involved in the assault.
I consider these directions to be insufficient for the reasons given above.
PART NINE: CONCLUSION
It is appropriate to record here that the momentary use of insulting language by Mr Hurley was really of little seriousness and may not have been unprovoked. In any event, he fully accepted that he should not have said what he said and was contrite. It is clear that the attack upon him was out of all proportion to any insult he had given. The attack was cowardly and despicable, all the more so for being an attack by two men upon one who could not defend himself in his surprised and intoxicated state. It cannot begin to be justified in any way and I have considerable sympathy for Mr Hurley as the victim of a very nasty crime. He retains the right to pursue civil remedies.
However, the occurrence of the crime is simply not in dispute here. What I am here concerned with is appellate review of the criminal conviction of the appellant as one of the perpetrators of that crime.
A summary of the identification evidence
What follows is very much subject to the more detailed discussion of the evidence above, and is simply a brief drawing together of the disparate threads of this difficult case.
Mr Hurley was unexpectedly assaulted by two men at night. He viewed the events under very disadvantageous circumstances and while highly intoxicated. He did not give any immediate benchmark description of either assailant to police at the scene against which his identification could later be checked, except to say that one of them was the boyfriend of Ms Krys (who was not the appellant).
His memory was then subjected to heavy suggestion, being told by several witnesses to the assault that a person called Brenton Strauss was his main assailant. He was also told that Brenton Strauss and Mr Daley (who he knew to be the boyfriend of Ms Krys) were friends and was very likely also informed that they are cousins. Mr Hurley then accessed the appellant’s Facebook where he saw a picture or pictures of the appellant in company with Mr Daley with the names Brenton Strauss and Matthew Daley clearly tagged on them. While doing this, Mr Hurley had a hangover, pain from his injuries and an understandable grievance with the man who had attacked him, who he then understood to be Brenton Strauss. Shortly thereafter, he went to the Golden Grove Police Station and stated that he had identified his assailant from a photograph on Facebook. He stated that he had previously (at the scene) only “presumed” that the boyfriend of Ms Krys was his assailant because of that relationship and the words spoken.
Mr Hurley attended at the Police Station at about the same time as the witnesses Ms Wright and Ms Mertin and it is likely that they all went together, particularly in light of the fact that they were workmates, as were the other witnesses (with the exception of the bus driver Mr Browne). There had been a good deal of chatter between the workmates since the incident.
Mr Hurley was not asked to undergo a formal photographic identification procedure. Police did not take statements from a number of relevant witnesses or even obtain a copy of the photograph that Mr Hurley asserted that he had seen on the appellant’s Facebook profile. Inexplicably, police failed to even attempt to speak to Mr Daley.
At trial, Mr Hurley confidently accused the appellant of being his main assailant. However on close analysis, his evidence displayed a number of clear signs of unreliability including previous inconsistent statements, unsatisfying and internally inconsistent answers on matters of detail and other substantial infirmities.
Ms Wright also gave evidence that she had identified the appellant from a Facebook photograph in the following somewhat confused circumstances. After giving a very different version and being referred to her prior inconsistent statements, Ms Wright gave as her final version the following sequence of events. First, in the early hours of 10 October 2010, she and Ms Ghanem used Ms Ghanem’s mobile phone to view Ashley Krys’ Facebook profile which listed her boyfriend as Mr Daley. They then immediately went to Mr Daley’s Facebook page where they saw one photograph in which Mr Daley appeared with the appellant and three other men and identified the appellant in that photograph as one of the assailants. They did not continue to look at any further photographs after that. Second, later that same day (during office hours on 10 October 2010 at Ms Wright’s workplace) Ms Wright had a separate Facebook session together with her workmate Ms Merrit. At this time they went to Mr Daley’s Facebook page, but went deeper into the appellant’s website than Ms Wright and Ms Ghanem had done in the previous session in the early hours of the morning. They proceeded to look at a number of other photographs with the appellant in them. Third, Ms Wright cropped the one photograph of five men referred to above to show only the part depicting Mr Daley and the appellant, printed it and gave it to police in that cropped form on 10 October 2010 when she attended Golden Grove Police Station with Ms Mertin. The photograph bears a printing date of 10 October 2010 and has a police receipt attached to it which bears that same date. It also bears handwriting clearly stating that Brenton Strauss and Matthew Daley are cousins and this is almost certainly the handwriting of Ms Wright.[121]
[121] Constable Perks gave evidence that this handwriting was on the document when he first saw it prior to interviewing the appellant.
Thus, Ms Wright initially jointly identified the appellant with Ms Ghanem at or around 2am on 10 October 2010, in circumstances where persons on the bus in their presence had just been asserting that Mr Daley was involved in the incident. There can be no doubt that they discussed such matters in the course of their identification process. The reliability of any identification by Ms Wright was substantially further diminished by substantial inconsistencies in her evidence both internally and with other witnesses. A particularly significant inconsistency in relation to Ms Wright’s evidence was as to her ability to see the area in which the two assailants were close together. While she stated at trial that she was positively able to describe what the second assailant did in that area (and that she could see, and later identify, “male 1” who was very close to “male 2”), she had previously declared unequivocally to police that she could not see what, if anything, male 2 was doing there. No explanation was offered for that very significant inconsistency. Further, the behaviour of “male 2” that she now described at trial (but was previously unable to describe) is similar to the evidence given by her workmate, the victim, as to the actions of that same individual, which is highly suggestive of further contamination of evidence.
Any weight to be attached to the Facebook identifications of both Ms Wright and Mr Hurley was substantially diminished by the failure of police to take a baseline description of the assailants at the scene from them (or from any other of the witnesses) and also by the further cumulative failure by police to later request either Mr Hurley or Ms Wright to undergo a formal photographic identification procedure. It may well be that the witnesses could not have separately performed an objective formal photographic identification procedure with the use of 16 appropriate foils, even with the advantage of having previously seen the Facebook photographs.[122] This procedure, although subject to the disadvantages of the lack of the requisite baseline descriptions which should have been taken at the scene,[123] and to the presence of the contamination of memory that had occurred after leaving the scene, would still have been vastly superior to the largely meaningless “in Court identification” that later occurred in circumstances where the appellant was the only candidate in sight.
[122] Mr Browne was the only one to perform the formal photographic identification procedure and he identified two men, neither of whom was the appellant.
[123] As discussed above, the selection of foils should be made by reference to the baseline descriptions which should be taken as early as possible.
The adequacy of the police investigation
As stated above, the police investigation was markedly inadequate in a number of respects. In The Queen v S, G I stated:[124]
[59]The question of whether an unsatisfactory police investigation could result in an accused failing to receive a fail trial was considered by the High Court in Penney v The Queen.[125] In that case, Callinan J (with whom the other members of the Court agreed) held that a complete and unexceptionable investigation was not required for a fair trial. However, his Honour also concluded that despite that general proposition, there may be instances where an unsatisfactory investigation could deprive an accused of a fair trial. His Honour stated:[126]
18.The appellant’s submissions on these contentions fail at the threshold. They fail because even though a better investigation may, and probably should have, been conducted, there is no general proposition of Australian law that a complete and unexceptionable investigation of an alleged crime is a necessary element of the trial process, or indeed of a fair trial. That is not to give any imprimatur to incomplete, unfair or insufficient police investigations. Indeed there may be cases in which deficiencies in the investigation might be of such significance to a particular case as a whole that the accused will be entitled to an acquittal or a retrial. But that will all depend on the facts of the particular case … (Emphasis added)
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[60]I do not find it necessary to consider in what precise circumstances an appeal should be allowed solely on the basis of an unsatisfactory investigation. Rather, it appears clear to me that, at least in the present case, this aspect of a poor or unsatisfactory investigation is one of a number of matters that may be taken into account when considering whether “the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force” for the purposes of the test laid down in M v The Queen[127] as referred to above. (Emphasis added)
[124] (2011) 109 SASR 491, 504.
[125] Penney v The Queen (1998) 72 ALJR 1316.
[126] Penney v The Queen (1998) 72 ALJR 1316, [18].
[127] M v The Queen (1994) 181 CLR 487, 494.
I emphasise that there is no magic in the term “police investigation” here. One could simply refer to such things as the absence of a prompt baseline description or the lack of a formal photographic identification procedure and treat their simple absence as examples of circumstances which degrade the value of identification evidence. The approach I take in the present case is confined to the weight and sufficiency of the identification evidence and in no way is related to an Ireland/Bunning v Cross approach.[128]
[128] R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54.
However, as a matter of realism, such examples as given immediately above may be usefully discussed under the heading of “police investigation” because in a very real sense the police are responsible for such matters. It was the choice of the police not to take prompt descriptions of the offenders and not to perform formal photographic identification procedures. There is no reason here to suppose that the witnesses might not have complied with a request to undertake a formal photographic identification procedure and every reason to believe that they would have. I have referred above to a number of other matters that may be discussed under the heading of “police investigation” in this sense and I will not repeat them. Suffice it to say, the cumulative effect of this group of matters was to adversely affect the weight of the identification evidence of Mr Hurley and Ms Wright in a very substantial way.
It may, of course, be that repetition of such poor investigatory practices as occurred here may lead to a future application of the Ireland/Bunning v Cross discretion but it is unnecessary for me to consider that matter here. The Christie[129] discretion, and the general fairness discretion are, of course, also available but I find it unnecessary to consider these matters further.
[129] R v Christie [1914] AC 545, 599 (Moulton LJ).
Failure of the Magistrate to adequately direct on identification evidence
I find that the cumulative effect of the non-directions and mis-directions in the Magistrate’s judgment as referred to above would require the conviction to be set aside. That would result in either an order for a re-trial or a dismissal of the complaint having regard to such factors as the staleness of the charge, the lack of the weight of the evidence, and the fact that the police were responsible for an investigatory process that substantially contributed to the degradation and the ultimate lack of weight of the identification evidence, which matters cannot now be cured.[130]
[130] See Siebel v The Queen (1992) 57 SASR 558, 564.
The evidence was insufficient to prove the charge beyond reasonable doubt.
However, having spent a good deal of time since the hearing of the appeal reading and re-reading the evidence and considering relevant authorities and the arguments of both counsel, I consider the present case is one that should be resolved by direct reference to an examination of the sufficiency of the evidence.
Although made in the context of appellate review of a trial by jury, the approach of the High Court in Davies & Cody v The King[131] is of some assistance here. Latham CJ, Rich, Dixon, Evatt and McTiernan JJ there stated: [132]
We think the view accepted in England and, as far as we know, elsewhere in the Dominions where the provisions of the Criminal Appeal Act have been adopted, should be applied in Victoria. That view, as we understand it, is that, if a witness whose previous knowledge of the accused man has not made him familiar with his appearance has been shown the accused alone as a suspect and has on that occasion first identified him, the liability to mistake is so increased as to make it unsafe to convict the accused unless his identity is further proved by other evidence direct or circumstantial. Where that further evidence consists in or includes other witnesses whose identification has been of the same kind, the number of witnesses, their opportunities of obtaining an impression or knowledge of the prisoner and other circumstances in the case must be taken into account by the court of criminal appeal for the purpose of deciding whether on the whole case the possibility of error is so substantial as to make the conviction unsafe.
[131] (1937) 57 CLR 170.
[132] Davies & Cody v The King (1937) 57 CLR 170, 182.
In the present case, the evidence of the victim Mr Hurley corresponds to (but is in fact worse than) that of the first witness referred to by their Honours. Turning to the “further evidence” here, the infirmities of the evidence of Ms Wright and the balance of the evidence in the case are so great that the answer to the question of “whether on the whole case the possibility of error is so substantial as to make the conviction unsafe” must very clearly be in the affirmative in my view.
The purview of a Supreme Court “Magistrates Appeal”
The purview of a Supreme Court “Magistrates Appeal” has traditionally been broader than that of an appeal against a jury verdict. Thus, Perry J stated in Taylor v Hayes:[133]
While it is the responsibility of the Court of Criminal Appeal independently to assess the evidence (see Morris v The Queen (1987) 163 CLR 454), in doing so the function of the court is clearly quite different from that imposed upon a judge hearing a justices appeal.
It follows from the above observations that the scope of an appeal under the Justices Act is ‘not less but larger’ than the scope of an appeal under the Criminal Law Consolidation Act: see Ghys v Crafter (supra) per Napier J at 32.
…
Grounds of appeal under the Justices Act, when the appeal relates to disputed matters of fact, should embody a recognition of the fact that the task of this Court on such an appeal is to reach its own view of the case by making an independent review of the evidence. An appeal may be allowed even if there is evidence to support the magistrate’s findings. While it must give due weight to the advantage held by the magistrate in seeing and hearing the witnesses, if this Court reaches a different view on the evidence it must give effect to that by substituting its view for that reached by the magistrate, or if it is otherwise satisfied that it is proper to do so, remitting the matter for rehearing before the same or another court of summary jurisdiction.
Conversely, it follows that it is not necessarily sufficient to justify the dismissal of an appeal under the Justices Act, that the appeal court is of the view that there was material before the magistrate upon which it was open for him to reach the decision the subject of the appeal.
[133] (1990) 53 SASR 282, 291.
One must also bear in mind the words of King CJ (with whom Duggan and Zelling JJ agreed) in Laurie v Nixon:[134]
... When such momentous consequences may result from a conviction based upon findings of fact by a magistrate sitting alone, the need for a critical and thoroughgoing scrutiny by the appellate court should need no emphasis. It involves no disrespect to the competence of the magistrates to recognise the existence of the risk of mistake by an individual magistrate as to matters of fact including the assessment of the credibility of witnesses.
[134] (1991) 162 LSJS 16, 19. In Burlinson v Police (1994) 75 A Crim R 259, 263 Nyland J held that the precepts in Taylor v Hayes and Laurie v Nixon equally applied to s 42, Magistrates Court Act 1991 as they had to the previous provision in the Justices Act 1921. I respectfully agree.
I give full and due weight to the advantage held by the Magistrate in seeing and hearing the witnesses. However, in the area of identification evidence, and depending on the circumstances of the case, the appellate Court may be in just as good as a position as the trial Court in performing a detailed consideration of the transcript and exhibits to decide the appropriate inferences to be drawn. The present case does not depend on the overturning of credibility findings and factual findings based thereon; rather, this case essentially concerns matters of reliability rather than credibility.
Further, as is noted above, identification cases are almost idiosyncratic in the variety of peculiar dangers they present. One such danger is reliance upon demeanour, particularly in a case where: the crime has undoubtedly been committed; the victim has suffered nasty injuries and has a legitimate grievance against his assailant; other witnesses sympathise with the victim and want to be seen to be helping him; and the witnesses honestly, and perhaps fervently, believe that the man on trial is the assailant. That case is this case. Reliance upon demeanour here was more likely to be a hindrance than a help.
Decision
Adopting the appropriate approach to a Magistrates Court appeal, I consider that many of the problems traditionally associated with identification evidence came together here in a particularly stark form and their cumulative effect was a high level of contamination and degradation of evidence resulting in a very substantial possibility of incorrect identification. This possibility has not been negated by the cumulative effect of the whole of the evidence.
For all of the reasons above, I consider that the evidence at trial was simply insufficient to prove the charge beyond reasonable doubt. Accordingly, I quash the conviction and dismiss the complaint.
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