Tangshabani v The State of Western Australia
[2015] WASC 212
•3 JUNE 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: TANGSHABANI -v- THE STATE OF WESTERN AUSTRALIA [2015] WASC 212
CORAM: HALL J
HEARD: 3 JUNE 2015
DELIVERED : 3 JUNE 2015
FILE NO/S: INS 61 of 2015
BETWEEN: ROZBEH SEEROSS TANGSHABANI
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Identification evidence - Digiboard identification - Whether evidence should be excluded as unfair to the accused - Whether prejudicial effect outweighs probative value - Whether digiboard should contain other images that are similar to that of the accused or similar to descriptions of the accused given to police - Whether identification process properly conducted
Legislation:
Nil
Result:
Application to exclude evidence refused
Category: B
Representation:
Counsel:
Applicant: Mrs E C J Needham
Respondent: Mr B E F Tooker
Solicitors:
Applicant: Elizabeth Needham
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395
Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159
HALL J:
(This ruling was delivered extemporaneously and has been edited from the transcript).
The application
The accused is charged with two counts of aggravated armed robbery contrary to s 392 of the Criminal Code (WA). The matter is listed for a four day trial commencing on 1 February 2016.
By application dated 19 May 2015 the accused seeks a ruling that the digiboard identification evidence of a prosecution witness, Zachary Cloutman, is inadmissible. The application is based on three contentions. First, that the description first given by Mr Cloutman to police was significantly different to a number of the images contained on the digiboard. Secondly, that there were significant differences between the image of the accused and the images of other people on the digiboard. And thirdly, that the identification by Mr Cloutman was influenced by another witness.
The prosecution case
The prosecution case is that the accused and an unknown co‑offender were present at the Toorak Lodge, Great Eastern Highway in Rivervale on the afternoon of Saturday, 4 October 2014. They approached room 214, where one of the alleged victims, Jared Vanmaris Stevens was standing by the door.
The unknown co‑offender is alleged to have grabbed Mr Vanmaris Stevens and forced him into the room. There were three other occupants of the room, Mr Vanmaris Stevens' girlfriend, Jessica Pearson; his friend, Mr Cloutman; and Mr Cloutman's girlfriend, Kindalyn Guthridge.
It is alleged that the unknown offender approached Mr Cloutman holding a knife and demanded money. After being told by those present that they had no money, the unknown offender struck Mr Cloutman with a clenched fist. It is alleged that the accused and the unknown offender then approached Mr Vanmaris Stevens and again demanded money. The prosecution case is that the accused was holding a backpack open in a way that suggested he wanted money placed in it. Mr Vanmaris Stevens emptied his pockets and placed the contents into the backpack. This included $5 in coins, the keys to a car and a mobile telephone. The unknown offender then punched Mr Vanmaris Stevens. The accused and the unknown offender are then alleged to have searched the room and stolen other items including cash, a backpack, a wallet, a tablet device, another mobile telephone, a further set of keys and a bottle of alcohol.
The relevant identification evidence
Mr Cloutman provided a handwritten statement to the police that was signed and dated 8.45 pm on 4 October 2014, that is the date of the alleged offence. In that statement Mr Cloutman provides a description of both of the alleged offenders. He describes the second man, that is, the man who was not holding the knife and is alleged to be the accused, as being approximately five foot six inches in height, of solid build with 'a medium skin tone of middle eastern descent in colour'. He states that the man had dark brown hair that was held back in a ponytail and was about five to six inches in length.
According to Mr Cloutman the second man entered the room behind the co‑offender and shut the front door. He says that that man then moved to the back door and shut that and a curtain. He states that both men demanded money and that the second man moved to his right-hand side and struck him once to the face with a clenched fist. He says he then saw Mr Vanmaris Stevens pushed onto a bed by the second man who he saw swing at Mr Vanmaris Stevens a couple of times. He says that as the first man was searching his backpack the second man moved to his side and struck him one or two more times with a clenched fist to the right side of his face. The first man then tried to elbow him. The second man then said, 'Let's go'. The second man grabbed the first by the shoulder and pulled him back. The second man attempted to kick Mr Cloutman with his right foot in a backward motion but missed. Both men then ran from the room. Mr Cloutman says that he followed close behind and went to the balcony where he yelled, 'Call the cops'. The two men were at the far end of the building and almost out of sight, but they turned around and the first man yelled, 'Don't do that, we'll be back later'.
On Monday, 6 October 2014, that is two days after the alleged offence, Mr Cloutman, Mr Vanmaris Stevens, Ms Pearson and Ms Guthridge attended at the Busselton Police Station for the purpose of viewing digiboards containing images. Senior Constable Brent Woolhouse was responsible for conducting the identification procedure.
In his statement Senior Constable Woolhouse states:
They attended the station together. I took each one individually into the interview room and showed them images from the separate photoboards. At the conclusion of each viewing I ensured there was no communication between witnesses by keeping them segregated.
The digiboard identification procedures were recorded on video. A DVD of the recorded procedures was tendered on this directions hearing. I have viewed that DVD. Each of the witnesses was separately spoken to by Senior Constable Woolhouse. The order in which this occurs was Vanmaris Stevens, Pearson, Cloutman and Guthridge. At the conclusion of Mr Vanmaris Stevens' procedure he was told by Senior Constable Woolhouse that in order to ensure independence he would be taken to a waiting room that was separate from the others who remained to be seen.
The only witness who identified the accused was Mr Cloutman. Mr Vanmaris Stevens identified another image on the digiboard he was shown, though with considerable hesitation. The digiboards shown to each of the witnesses were different in that the same 12 images were used, but the images were differently arranged and numbered. Mr Cloutman was more certain in his identification of the accused. In pointing out the image of the accused he stated that he thought that the accused had more stubble on his face at the time of the offence.
Relevant principles
The basis on which I am asked to exclude this evidence is in the exercise of the fairness discretion. It is suggested that the procedure which was adopted in this case was unfair to the accused and that it would be unfair for this evidence to be admitted against him. It is also submitted that the evidence is more prejudicial than probative, and for that reason, too, should be excluded.
In Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395 Gibbs CJ said that:
The authorities support the conclusion that I have reached, which is that, as a matter of law, evidence of an identification made out of court by the use of photographs produced by the police is admissible. However, a trial judge has a discretion to exclude any evidence if the strict rules of admissibility operate unfairly against the accused. It would be right to exercise that discretion in any case in which the judge was of the opinion that the evidence had little weight, but was likely to be gravely prejudicial to the accused (402 - 403).
In that case there was reference to the desirability of identification parades being used and various reasons were given for that. But in this State the procedure of utilising a digiboard has been accepted as appropriate in Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159. However, where such an identification procedure is used there is usually a need for directions to be given by the judge to the jury regarding the procedure and the failings or risks of misidentification that may be inherent in it. Amongst those are the fact that photographic images are two‑dimensional and do not allow an assessment of things like body type and height.
In Winmar the Court of Appeal was considering two separate cases, one of Winmar and one of another convicted man named Hussaini. Hussaini's case involved the use of a digiboard where the description given of the accused was different to the appearance of the images in the board (including that of the accused himself) [63]. The court in that case noted the significant difference in the cognitive functions involved in giving a verbal description of a person and identifying an image of a person subsequently [64] ‑ [67]. The court concluded that studies tended to support the proposition that an identification may be accurate even when it does not match a description.
In this case the identification process was undertaken a short time after the alleged offence, but when the photograph of the accused which was included in the board was taken is not apparent. There is a reference number on the key to the photographs, which may be a date, but that is uncertain. In any event, it is not known whether the photograph of the accused was one taken close to the event. What is apparent from the photograph is that the accused's hair appears to be shorter than described to police by Mr Cloutman. He also appears to have some facial hair growth in the photograph - though this was not referred to in the description. Bearing in mind that hair length and facial hair may change over time, it would not, in my view, be necessary or fair to an accused person to include in the digiboard images of other people that are correlated with the description given by the accused, rather than being correlated with the image of the accused that is to be used in the board itself. To do so would only heighten the risk that the image of the accused (which, as here, may differ in some respects from the description) will stand out from the other images.
The purpose of the board is to determine if a witness can identify the accused as being the offender from a number of other photographs of people of similar appearance. In those circumstances, fairness dictates that there should be some attempt to ensure that the other images used as fillers on the board bear some resemblance to the image that is in fact used. The purpose of the board is not to test the veracity or reliability of the description given to the police. Any differences between the description and the image can, if the image is identified, be used to cross‑examine the witness, but that is a matter going to weight rather than admissibility.
The submissions
Turning, then, to the defence submissions, it is contended by the defence that a number of the images shown on the digiboard to Mr Cloutman were not in accordance with the description that he gave in his witness statement. In particular it is suggested that six of the images were not men of middle eastern descent. Of course the witness did not purport to say anything about the person's origin, the description in this regard related only to skin colour.
Notwithstanding what I have said about there being no requirement for the board to be compiled by reference to the description in the witness statement, I do not in any event accept that submission. The term 'middle eastern descent' is not a precise description and does not denote any specific racial characteristics. Exactly what that term connotes may vary from person to person. In the most general terms it might indicate a person with dark hair and eye colour and an olive complexion. But, as I have noted, in Mr Cloutman's description, it seems to have been focused on skin colour. Counsel endeavoured to persuade me that there was a uniquely identifiable skin colour for people from 'the middle east'. They were said to be darker skinned than people of Mediterranean derivation. However, counsel referred to the latter group as including Turkish people, as well as Greeks and Italians. Exactly where Lebanese, Syrians or Egyptians would fit was not clear to me. Counsel conceded that the boundaries of these classifications were not clear‑cut. However, I doubted that 'middle eastern' necessarily conveyed any precise skin colour, but rather a range of skin colours from olive to more darker hues.
I examined the digiboard, and in particular the six images referred to in the defence submissions as not being men of middle eastern appearance. In my view, the only one who could arguably not meet this description is image number 7. The others could be viewed as having a middle eastern skin colouring, accepting, as I do, that that encompasses a range.
The defence also suggest that the digiboard was unfair because the image of the accused is the only one with brown hair, thereby making him the only choice to match that part of Mr Cloutman's description. In fact it is very difficult to tell from the images whether the accused has dark brown or black hair. A comparatively smaller amount of his hair is visible than for some of the other men depicted. What is clearly evident is that all of the men have dark coloured hair. There is nothing about the accused's hair that makes his image stand out as being notably different.
The defence also submits that a number of the images of other men have distinctive facial hair and that this again reduces the number of images that are similar to the accused. It is true that Mr Cloutman's description in his witness statement does not make any reference to facial hair. However, as I have noted, when identifying the accused from the digiboard, Mr Cloutman said that he thought the accused had more facial hair at the time of the offence. This is clearly not a factor that deflected the witness from identifying the accused. In any event, I do not accept that this was a factor that had the effect of significantly reducing the number of images from which the witness had to choose or of making the process unfair.
Reference was also made to the fact that in his description Mr Cloutman referred to the second man as having his hair tied back in a ponytail. It is suggested that a number of the images have hair which is too short to be tied back in such a manner, and that this also limits the choice available to the witness. I do not accept this submission. Clearly length of hair, like facial hair, can vary over time. Furthermore, the image of the accused appears to show him having hair which is too short to be tied back in a ponytail, although it may be that it could be tied back in some fashion. In these circumstances, the inclusion of other men with short hair could not have had the effect suggested.
The defence also submits that Mr Cloutman's identification is likely to have been influenced by Mr Vanmaris Stevens. The reasons for this are said to be that they are friends, they attended the police station together and that they both identified image number 6. Whilst image number 6 was not the accused on both boards, the suggestion is that Mr Vanmaris Stevens must in some way have communicated with Mr Cloutman and told him to identify image number 6.
There is in fact no evidence of any such communication. To the contrary, the procedure adopted by Senior Constable Woolhouse, of seeing each witness individually and then placing them into a separate room after the procedure has not been challenged. There was no requirement for Senior Constable Woolhouse to be called and his statement was received in evidence at this directions hearing.
Accordingly, on the available evidence, there was no opportunity for Mr Vanmaris Stevens to communicate with Mr Cloutman in the way suggested. In any event, as I have noted, Mr Vanmaris Stevens was extremely hesitant in his identification, which tells against a suggestion that he had any desire to communicate with Mr Cloutman in the way suggested.
Conclusion
For the above reasons, I do not accept that it would be unfair to the accused to admit the evidence of Mr Cloutman's identification of the accused, nor do I accept that the evidence is more prejudicial than probative. That is not to say that there could not be appropriate avenues of cross‑examination taken at trial to test the reliability of the identification, or that appropriate directions should not be given to the jury in regard to the identification evidence, as I am sure they would be. For those reasons, the application is dismissed.
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