Tasmania v Clark

[2005] TASSC 123

[2005] TASSC 123

CITATION:              Tasmania v Clark [2005] TASSC 123

PARTIES:  TASMANIA
  v
  CLARK, Jonathon Wayne

TONNER, Joseph Andrew
MITCHELL, Michaela Suzanne

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  348/2005
DELIVERED ON:  21 November 2005
DELIVERED AT:  Hobart
HEARING DATE:  15 November 2005
JUDGMENT OF:  Blow J

CATCHWORDS:

Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Prejudicial evidence – Particular cases – Photographic identification evidence – Probative value of evidence versus prejudicial effect – Failure to offer identification parade – Police photograph of accused who admitted being present.

Evidence Act 2001 (Tas), s137.
Pitkin v R (1995) 69 ALJR 612, distinguished.
R v Carusi (1997) 92 A Crim R 52, referred to.
Aust Dig Criminal Law [422]

REPRESENTATION:

Counsel:
             State:  A R Jacobs and V Tomlinson
             Clark:  R Mainwaring
             Tonner  K Baumeler
             Mitchell  P E Barker
Solicitors:
             State:  Director of Public Prosecutions
             Clark:  Legal Aid Commission of Tasmania
             Tonner  Butler McIntyre & Butler
             Mitchell  PWB Lawyers

Judgment Number:  [2005] TASSC 123
Number of paragraphs:  31

Serial No 123/2005

File No 348/2005

STATE OF TASMANIA v JONATHON WAYNE CLARK,
JOSEPH ANDREW TONNER and MICHAELA SUZANNE MITCHELL

REASONS FOR DETERMINATIONS  BLOW J

21 November 2005

1. The accused have pleaded not guilty to seven counts of assault and one count of wounding.  Each count relates to only one or two accused.  Before the empanelment of the jury, I was asked to exclude evidence of the identification of all three accused from police photographs, to exclude the evidence of witnesses named Parsey and Quilliam-Kennedy, and to sever count 5 from the other charges on the indictment.  I decided to refuse all those applications, except that I decided that the evidence relating to police photographs of the accused Mitchell was not to be admitted against her.  I did not hold that that evidence was not to be admitted against the other accused.  These are my reasons for my determinations.

1. The eight charges relate to incidents that are alleged to have occurred in the vicinity of Salamanca Place and Montpelier Retreat in the early hours of Sunday 10 April 2005.  Counts 1 – 4 relate to a series of assaults which are said to have occurred in Montpelier Retreat at about 1.45am.  By those four counts, the accused Clark and Tonner are charged with assaulting men named Hoppitt, Barber, Cannamela and McMahon respectively.  Counts 5 and 6 relate to an incident said to have occurred near the intersection of Hampden Road and Sandy Bay Road, Battery Point, at about 2.15am.  By count 5, the accused Mitchell is charged with assaulting an unidentified young woman by punching her about the head.  By count 6, the accused Tonner is charged with assaulting an unidentified young man by punching him about the head.  Counts 7 and 8 relate to an incident alleged to have occurred near the Tasman monument between Salamanca Place and Parliament House at about 2.25am.  By count 7, Miss Mitchell is charged with assaulting a Mr Hedge by striking him about the head with a drink can or a similar object.  By count 8, the accused Clark and Tonner are charged with causing grievous bodily harm to Mr Hedge "by both punching him to the head and body and by one of them stabbing him once to the sternum and twice to the left side of his body with a knife or other sharp object".

1. Two police officers gave evidence on the voir dire in relation to the objections to the photo identification evidence, and a number of exhibits were tendered.  Counsel asked me to have regard to the Crown papers, ie, the proofs, statements, reports, statutory declarations and depositions of the Crown witnesses, instead of taking further oral evidence on the voir dire, and I agreed to do so.  Taking such a course can have difficulties, but the alternative was a voir dire that could well have lasted more than a week.

1. There is a substantial body of evidence available to prove that each of the physical acts alleged in the indictment occurred.  The principal matters in controversy at the trial are likely to be identification, self-defence, the defence of others, and whether either of the accused men is criminally responsible for any physical acts of the other. 

Evidence of identification from police photographs

1. In the course of their investigations, police officers prepared a number of "photo boards", containing photos of the accused.  They were produced using computers.  Each photo board contained a photograph of one of the accused persons and eleven persons of somewhat similar appearance.  Two such photo boards were created using different photographs of Clark, two were created using different photographs of Tonner, and one was created using a photograph of Mitchell.  The Crown proposed to lead identification evidence from several witnesses who viewed some or all of those photo boards and identified individuals depicted in the photographs.  In some cases, the evidence will be that a witness looking at a photo board, rather than making a positive identification, selected two photographs of individuals resembling someone he or she had seen.  

1. Photo boards depicting the accused Clark were created on 12 April and 29 April.  The Crown does not propose to rely on the earlier one, apparently since none of the witnesses identified the photograph of Mr Clark that was included in it.  However the Crown does propose to rely on the later one, which was viewed by Mr Hedge and a woman said to have been with him, Miss Blackaby.  Mr Clark's photograph was no 12 on that photo board.  Mr Hedge viewed it on 5 May, and made a statutory declaration in which he said that both no 3 and no 12 looked "familiar and similar" to one of the males that was involved in the assault on him.  Miss Blackaby also viewed that photo board on 2 May.  She identified nos 9 and 12.  In a statutory declaration made on 19 September, she said:

"I have signed two male photo's [sic] numbers 9 and 12 as the male I believe was the person I described in my original statement as the person who appeared to be holding something in his hand and moved it forward towards James [Hedge].  I am leaning stronger to number (12) twelve, yet number 9 is also similar."

1. Photo boards including photos of the accused Tonner were created on 11 April and 29 April.  The earlier one was viewed by a witness named Brown on 15 April.  He is alleged to have seen the Hampden Road incident.  Mr Tonner was in position no 3 on that board.  Mr Brown identified photo no 3 as the male who assaulted the male victim during that incident.  In a statutory declaration made on 29 September he said, "He has the same eyes and lips.  I am 100% certain of this identification."

1. There is evidence that the second photo board relating to Mr Tonner contained as photo no 9 a photo of him taken by Detective Oddie on 28 April.  The Crown proposes to lead evidence from four witnesses who viewed it.  Mr Hoppitt, the alleged assault victim to whom count 1 relates, made a statutory declaration on 29 April in which he said he recognised the person in photo no 9 as "the person who originally confronted me in my face, wearing the black top with red stripes".  There is evidence that Mr Hedge and Miss Blackaby both viewed this photo board on 2 May; that Mr Hedge said in a statutory declaration that the males depicted in photos 1 and 9 were "the males that were possibly involved in the assault upon me" and, "they both look familiar to me as being one of the males that were involved"; that Miss Blackaby marked nos 8 and 9 on this photo board; and that she stated in a statutory declaration, in respect of both of those photos, "I believe this was the other male concerned in this incident on the night".  There is evidence that Mr Hudson viewed this photo board on 11 September, and thereafter made a statutory declaration in which he said, "I immediately recognised the male in the number 9 … as being the aggressive male who I saw assaulting the male in Sandy Bay Road.  He was the aggressive male that was having a go at people in sandy Bay road and had had a go at myself and Jasper.  I am 100% sure that this is him." 

1. There is evidence that the photo board containing the photo of Miss Mitchell was viewed by two companions of Mr Hedge: a Miss Fyffe on 12 April, and Miss Blackaby on 2 May.  Miss Mitchell appeared in photograph no 11.  Miss Fyffe said in a statutory declaration, "I have recognised photograph number eleven (11) as being the female that was possibly responsible for the assault on my friend James HEDGE.  The girl in photo eleven has the same type of hair, yet I remember it being possibly a bit crimped or similar."  Miss Blackaby said in a statutory declaration that she believed the female she had described in a previous police statement was the one in photo no 11.  She continued, "The only difference from the photo and when I saw her Sunday morning [10 April] is that her hair might be a little shorter now, possibly a little light.  I am very confident this is the female involved."

1. The Evidence Act 2001, s137, requires that the court must refuse to admit evidence adduced by the prosecutor if "its probative value is outweighed by the danger of unfair prejudice to the defendant." Counsel for all three accused submitted that the photo identification evidence was of little probative value; that its probative value was outweighed by the danger of unfair prejudice to the accused; and that I should refuse to admit that evidence.

Prejudicial effect

1. The use of police photographs for identification purposes is likely to suggest to the jury that the police had photographs of all three accused prior to the commission of the alleged crimes; that arrangements existed for police officers to have ready access to those photos; and that all three accused therefore probably had criminal records.  There is a danger that the jury will reason, inappropriately and unfairly, that the accused are therefore likely to have committed the crimes charged.

1. There are a number of factors that I should take into account in relation to the magnitude of that danger.  As the first photo board relating to Mr Clark will not be relied on by the Crown, the jury will learn of only one police photograph of him.  As there will be evidence that a police officer took one of the photographs of Mr Tonner on 28 April, the jury will learn of only one pre-existing police photograph of him.  The danger of unfair prejudice from the use of the police photographs can be reduced, but not eliminated, by me giving the jury directions to the effect that the police have photographs of people for all sorts of reasons; that their possession of someone's photograph does not mean that that person has ever committed any offence; that the jury should not try to guess why the police had photographs of any of the accused; that their possession of the photographs does not indicate that any of the accused had any tendency to commit crimes of violence; and that they should decide whether each charge has been proved beyond reasonable doubt by reference to the evidence as to the events of the night in question, and not act on guesswork.  Further, Crown counsel has indicated that the Crown is willing for the jury to be told that it is an agreed fact that each of the relevant photographs is a photograph of the accused person in question.  If defence counsel agree to that course being taken, the jury need not hear evidence that any particular photo was taken by a police officer, nor evidence as to the date that any particular photograph was taken.

Probative value

1. Identification evidence can always be unreliable.  There are a number of matters that tend to weaken the probative value of photo identification evidence in general, and this photo identification evidence in particular.  Photo identification evidence is inherently less reliable than identification evidence based on a properly conducted police identification parade, or other face-to-face evidence.  One weakness of photo identification evidence is that the accused person is not present at the time of the identification, and is therefore not able to litigate as effectively any weaknesses in the way in which the identification is made.  In this case, the evidence of the identification witnesses is based on recollections of individuals whom they saw outdoors in the middle of the night, in a stressful situation, and for only a brief period.  Some or all of them had been drinking.  Any or all of them could have been distracted by others.  When asked to describe the individuals whom they had seen, their descriptions were often vague, and there were inconsistencies and no doubt inaccuracies.  There were delays between their observations and their inspections of the photo boards.  These delays varied from days to months. 

1. In assessing the probative value of the photograph identification evidence, it is appropriate to consider what other identification evidence there is, and what the photograph identification evidence adds to the Crown case.  Each of the three accused participated in police interviews that were videotaped.  Each of the male accused did so twice.  The interviews of each of the accused contain many admissions as to them having been together as a threesome at all material times.  Each of the three accused had admitted being present at the time of the incident involving Mr Hedge, though each of the males asserted that the other admitted stabbing Mr Hedge.  In her interview Miss Mitchell admitted that she had hit Mr Hedge to the face with a drink can, but asserted that she had done so immediately after him pinching her "on the arse".  There is evidence that DNA matching that of Mr Hedge was found in a stain on a shoe worn by Mr Clark.  There is evidence from video surveillance cameras at Parliament House and a drinking establishment named Isobar which, together with the evidence of a pedestrian named Self, provides strong evidence as to how the male accused were dressed.  There is evidence from quite a number of witnesses as to the appearance and clothing of the individuals involved in the three incidents.  Generally speaking, the photo identification evidence strengthens the Crown case. 

1. To assess the probative value of the photo identification evidence, it is necessary to draw a distinction between, on the one hand, positive evidence from a witness that a photograph depicts an individual whom he or she saw and, on the other hand, evidence that a photograph merely bears a resemblance to an individual seen by the witness.  In Pitkin v R (1995) 69 ALJR 612, the High Court held that evidence of the latter type, when there was no other identification evidence, was insufficient to form the basis of a conviction. However that case is distinguishable because in this case there is a body of circumstantial identification evidence available in relation to each count against each accused. This case is analogous to one in which there is evidence that a crime was committed by a left handed person, and evidence that the accused person was left handed. Such evidence, by itself, would be insufficient to base a conviction. However such evidence is relevant and admissible as circumstantial evidence tending to prove the guilt of the accused. Evidence that a person depicted in a police photograph bears some resemblance to a person observed on the night in question is relevant and admissible circumstantial evidence.

1. There is evidence that Mr Hedge and Miss Blackaby viewed the earlier photo boards that included photographs of the accused Clark and Tonner without identifying either of their photos as depicting or resembling any individual they had seen.  Such evidence might not be elicited at the trial by the Crown or the defence, but I think I should take it into account in favour of the accused in determining the probative value of the impugned evidence.  It is well recognised that the memory of a witness as to the appearance of an individual he or she has seen might be corrupted by showing that individual a photograph of someone else.  A subsequent identification of an accused person may really be the result of a mental comparison with the photograph instead of with the living person.  This is known as the "displacement effect": R v Carusi (1997) 92 A Crim R 52 at 55. However Mr Hedge and Miss Blackaby were not shown single photographs. The original photo boards for Clark and Tonner included photos of each with 11 other men. The subsequent photo boards contained photographs of each with 11 different men. In any particular case, the likelihood that the image of one man from amongst 12 led to a corruption of memory is very low. The fact that each of them can at least give circumstantial resemblance evidence, if not positive identification evidence, as to the pictures of both Clark and Tonner in their second photo boards suggests that they are reliable witnesses who are not prone to jumping to conclusions.

1. The evidence as to who stabbed Mr Hedge is all to the effect that only one man did so.  There is a body of evidence to suggest that it was either Clark or Tonner.  There are likely to be major issues on the trial as to whether the jury can be satisfied beyond reasonable doubt that it was Clark, or that it was Tonner, or that one of them was criminally responsible for a stabbing by the other.  Whilst Miss Blackaby's evidence as to the police photographs is resemblance evidence rather than positive identification evidence, her evidence is important in relation to the roles in relation to the alleged stabbing of the men whom she says she saw.  In a statutory declaration, she described a man in a white shirt, and said that she saw him holding something in his hand, and that she saw that man move that hand forward towards Mr Hedge in a stabbing motion at least three times.  The comment that she made in relation to Mr Clark's second photo board, which I have quoted above, to the effect that she was "leaning stronger" to no 12, ie, Mr Clark, as "the person who appeared to be holding something in his hand and moved it forward towards James", is therefore a very significant piece of circumstantial evidence in relation to the most serious charge in this case.

1. As I have said, the only identification evidence based upon Mr Tonner's first photo board is to come from Mr Brown, who said that the man in photo no 3, ie, Mr Tonner, had the same eyes and lips.  In a statutory declaration he described the man who punched the unidentified male pedestrian, ie, the subject of count 6, as having "full protruding lips and blue eyes".  In his photo in his first photo board, Mr Tonner's lips are bigger and more protruding than those of the other 11 men.  His blue eyes are quite evident.  Identification from a group of photographs can be unsafe if only one shows a feature which is an identifying feature in the mind of a witness.  Thus in R v Blick (2000) 111 A Crim R 326, a conviction was quashed as a result of the appellant being the only person with a goatee beard depicted in a group of 12 photographs. However I do not think Mr Tonner's appearance was so drastically different from that of the other 11 men depicted in his first photo board. On the contrary, I think Mr Brown's photo identification evidence could well be regarded as very reliable because he was able to describe the facial characteristics that led to him making a positive identification.

1. There is some uncertainty as to who took the photograph of Mr Clark that appears in his first photograph, and when.  Detective Vout gave evidence that he took a photograph of Mr Clark on 1 April 2003, and that his appearance in the photo in the first photo board was consistent with it being that photo.  However there was other evidence in a police officer's deposition to the effect that police records showed that the photograph used in the first photo board was taken on 17 March 2003.  If that was so, there is no evidence as to who took that photo.  Detective Vout was unable to say that the photo was not one taken by someone else on 17 March 2003.  Miss Baumeler submitted on behalf of Mr Tonner that these uncertainties affected the probative value of the evidence based on that photo.  I disagree.  The evidence is sufficient to establish that the photo is a photo of Mr Clark, depicting him as he appeared on or about 1 April 2003.  It does not matter who took the photograph, or whether it was taken a fortnight earlier than that date. 

Unfairness

1. Mr Tonner was offered an opportunity to participate in a police identification parade, but declined.  Mr Clark and Miss Mitchell were apparently not offered such opportunities.  Miss Mitchell's counsel did not submit that she had suffered any unfairness as a result, but counsel for Mr Clark did make such a submission.  Photo identification evidence is inherently less reliable than evidence of an identification at a properly conducted police identification parade.  Photo identification evidence carries with it the risk that the jury will be prejudiced by the knowledge that the police had photos of the accused, whereas no such prejudice is possible when identification occurs at a parade.  It is therefore unfair to rely on photo identification evidence when an identification parade would have been appropriate and could conveniently have been conducted.  That is the case here.  There is nothing in the evidence to suggest that it would have been inappropriate or inconvenient to offer Mr Clark the opportunity to participate in an identification parade.  I regard this as a major factor weighing in favour of the exclusion of photo identification evidence relating to Mr Clark.

1. Miss Mainwaring submitted on behalf of Mr Clark that it was unfair for the investigating officers to show his second photo board to Mr Hedge and Miss Blackaby on 2 May because they already had sufficient evidence to charge him; and that the photo identification evidence of those witnesses should therefore be excluded.  She relied on R v Carusi (supra).  However there is no absolute rule that photo identification evidence should be excluded when it has been obtained at a stage when the police already had sufficient evidence to charge the accused: Alexander v R (1981) 145 CLR 395. Further, I am not satisfied that the police had sufficient evidence against Mr Clark as at 2 May for it to be reasonable for them to charge him. The Crown papers suggest that the DNA evidence against him was not available until June or July. The police had evidence of where he was at various times from his first video interview, the surveillance cameras, the evidence as to his clothing, and some of the evidence of descriptions of individuals. There was evidence tending to suggest that he and the other accused were together at all material times. However the evidence as to his participation in the alleged crimes varied from weak to non-existent. It was all circumstantial evidence, and it left open the possibility that each of the crimes now charged against Clark might have been committed by Tonner and/or some other male.

Is the probative value outweighed by the danger of unfair prejudice?

1. One should never underestimate the capacity of a jury to evaluate evidence that has weaknesses, nor the capacity of a jury to comply with a trial judge's directions as to impermissible reasoning, matters to be ignored, and the like.  Generally speaking, I think that the impugned identification evidence has significant probative value, and that it is well within the ability of a jury to evaluate that evidence without being inappropriately influenced by the information that the police had photographs of each of the accused.

1. Although I think it was unfair of the investigating officers not to offer Mr Clark an opportunity to participate in an identification parade, I am not persuaded that the danger of unfair prejudice resulting from the admission of the photo board identification evidence relating to him outweighs its probative value.  Although the evidence in question is circumstantial, and none of the witnesses positively identified Mr Clark from his photo board, the evidence has significant probative force, particularly since both Mr Hedge and Miss Blackaby picked his photo as possibly depicting one of the men they had seen.  I think this is an example of the sort of evidence that a jury can competently and safely evaluate, without too great a risk that they will be influenced by the information that the police had the photograph. 

1. Mr Barker submitted on behalf of Miss Mitchell that, in the light of her having admitted hitting Mr Hedge with the drink can, the evidence of her having been identified from photographs was of practically no probative value, and that its probative value must be outweighed by the unfair prejudicial effect of the jury learning that the police had a photograph of her.  Mr Jacobs submitted on behalf of the Crown that the evidence of her identification from photographs was of significant probative value as evidence against the two male accused.  Her admission is not evidence against them.  But the evidence that she was the female member of the group, when coupled with the evidence that the two male accused were with her at all material times, must be significant evidence relevant to the identity of the males in the group from which Mr Hedge was attacked.  However I do not think it would be appropriate for me to take into account the evidentiary value of the evidence in relation to the trials of the two men when determining the objection made on behalf of Miss Mitchell.  As against her, the evidence identifying her from photo boards has only minimal probative value, and I think that probative value is outweighed by the risk of unfair prejudice resulting from the jury knowing that the police had her photograph.  I therefore concluded that the photo identification evidence relating to her should be excluded, as against her.  As against the two men, that evidence is of significant probative value for the reasons explained by Mr Jacobs, and carries only a minimal danger of unfair prejudice, since a properly instructed jury is hardly likely to reason that their female companion had had a past association with the police, and that they are therefore more likely to have committed the crimes charged.

1. For these reasons, I decided not to admit the photo identification evidence relating to Miss Mitchell as evidence against her, but otherwise to admit all of the photo identification evidence.

Evidence of Parsey and Quilliam-Kennedy

1. The evidence of these two witnesses was objected to on the basis of irrelevance.  Their evidence is that they were walking past the Tasman fountain at about 2am when they encountered a group of males with a Hilux vehicle, that one of the males asked them whether they were all right, and that he threw a drink can towards them as they departed.  There was evidence that the three accused travelled to Salamanca Place in a Hilux vehicle driven by a man named Howe, and that they were drinking from cans that came from a carton in the vehicle.  The evidence tends to suggest that the group encountered was the group that included the three accused, and that one of the male members of that group was aggressive.  There is evidence that the Montpelier Retreat incident occurred at about 1.45am; that the Hampden Road incident occurred at about 2.15am; that the incident involving Mr Hedge occurred about 2.25am; and that the accused were filmed by a video surveillance camera at Parliament House at 2.28am.

1. It was argued that the evidence of misconduct on the occasion described by Parsey and Quilliam-Kennedy was irrelevant because it did not tend to prove misconduct at any of the times that the charges relate to.  For the Crown, Mr Jacobs submitted that the evidence was admissible since it tended to show that the man who threw the can was in an aggressive mood, and thus to rebut possible defences of self-defence or the defence of others in relation to the charges.  Both male accused said things during their first video interviews that raise questions of self-defence or the defence of others.  Mr Quilliam-Kennedy described the man who threw the can as "being aged mid 20's, medium to solid build, with a red or blue top, and a number 1 or 2 cut to his hair."  There is evidence that Tonner was wearing a dark top with red stripes.  The jury could infer that he was the man who threw the can.

1. I agree with Mr Jacobs on this point.  Whilst evidence of misconduct on other occasions is not ordinarily relevant, the evidence of these two witnesses tends to prove that the member of the group who threw the can, arguably Mr Tonner, was in an aggressive mood that morning, and thus tends to prove that any use of force by him was not defensive.  I therefore determined that the evidence of Parsey and Quilliam-Kennedy was admissible.

The severance application

1. Mr Barker applied on behalf of Miss Mitchell for count 5 to be severed from the indictment and tried separately.  Count 5 alleges that she assaulted the unidentified woman near Hampden Road.  The Crown has four witnesses who say they saw such an assault.  Two of them identified Tonner from photo boards.  There is the evidence that the three accused were together at all material times.  Thus there is circumstantial evidence that Miss Mitchell committed that assault.  However in relation to count 5 there is no complainant, the victim has not been identified, Miss Mitchell has made no admissions, there has been no identification parade, none of the eye witnesses identified Miss Mitchell from photographs, and there is no scientific evidence linking her to the crime.  

1. Mr Barker submitted that Miss Mitchell would be prejudiced in her defence of count 7, which relates to her hitting Hedge, if it were tried together with count 5.  He submitted that there was a risk that the jury would reason that she was in an aggressive mood, and therefore less likely to have been acting in self-defence, using no more force than was necessary, when she hit Mr Hedge.

1. Mr Hedge said in a statutory declaration that he was hit to the head area by a female.  He gave an account of events in which he said that he subsequently connected with one punch to the female's eye area.  No doubt he will be cross-examined about pinching Miss Mitchell on the bottom, and about punching her in the vicinity of the eye.  I think the jury is likely to concentrate on the evidence relating to the contact between Miss Mitchell and Mr Hedge when deciding upon its verdict on count 7, and that it is unlikely that it will attach much weight to the evidence as to earlier events.  I do not think it can be said that the evidence relating to count 5 is so strong, and the evidence in relation to count 7 so much weaker, that those charges should be tried separately in order to avoid the risk of a miscarriage of justice.  I therefore decided to refuse the severance application.