Tasmania v Lynch
[2008] TASSC 77
•2 May 2006
[2008] TASSC 77
CITATION: Tasmania v Lynch [2008] TASSC 77
PARTIES: TASMANIA
v
LYNCH, Michael Stuart John
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: CRIMINAL
FILE NO/S: 376/2005
DELIVERED ON: 2 May 2006
DELIVERED AT: Hobart
HEARING DATE: 4 April 2006
JUDGMENT OF: Slicer J
CATCHWORDS:
Criminal Law – Evidence – Identification - Modes of proof – Identification from photographs.
Alexander v R (1981) 145 CLR 395, applied.
R v Gatty [2001] TASSC 9, followed.
Tasmania v Clark [2005] TASSC 123, considered.
Aust Dig Criminal Law [607]
Criminal Law – Evidence – Judicial discretion to exclude evidence – Particular cases – Photographic identification evidence – Probative value of evidence versus prejudicial effect – Failure to offer identification parade.
R v Ireland (1970) 126 CLR 321; Cleland v R (1982) 151 CLR 1; Tasmania v Clark [2005] TASSC 123; R v Richardson [2002] TASSC 18, considered.
Evidence Act 2001 (Tas), ss135, 137.
Forensic Procedures Act 2000 (Tas), ss8, 10, 13.
Aust Dig Criminal Law [422]
REPRESENTATION:
Counsel:
Appellant: M P Shirley
Respondent: W A Ayliffe
Solicitors:
Appellant: Director of Public Prosecutions
Respondent: Ayliffe & Ayliffe
Judgment Number: [2008] TASSC 77
Number of paragraphs: 28
Serial No 77/2008
File No 376/2005
STATE OF TASMANIA v MICHAEL STUART JOHN LYNCH
REASONS FOR JUDGMENT SLICER J
2 May 2006
A ruling was given at trial adverse to the prosecution and brief reasons given for the ruling. However, the time constraints imposed by jury trial did not permit a full exposition of those reasons and, in deference to the submissions of counsel, I indicated that more comprehensive reasons would be later provided.
The indictment originally comprised three counts alleging acts of indecency at the same geographic location on three separate days, namely 15 October, 4 November and 8 November 2004.
The prosecution's original allegations were supported by three proposed witnesses who had stated to investigating police that each had observed a separate act of indecency on each of the three dates. There was other evidence common to the three counts. In furtherance of its case, the prosecution gave notice of its intention to rely on "coincidence" evidence as permitted by the Evidence Act 2001, s99. The notice relevantly stated:
"1Notice is given that coincidence evidence will be given by the following witnesses in the [respondent] trial set to commence on the 3rd day of March, 2006.
(a) F
(b) H
(c) P
2The coincidence evidence referred to is: (see Crown papers 3, 10, 16, 17 and 27).
That the three separate acts of indecency are alleged to have occurred in the late afternoon of the days referred to, in the front yard of the same premises at [address] at a time when the accused was resident at or associated with the house next door to the front yard where the alleged indecent acts are alleged to have taken place.
3Notice is given that coincidence evidence will be given by all of the abovenamed witnesses of matters detailed in the foregoing sub-paragraphs.
4Notice is given that tendency evidence will be given by the following witnesses in the [respondent] trial set to commence on the 3rd day of April, 2006.
(a) F
(b) H
(c) P
5The tendency evidence referred to is: (see Crown papers 3, 10, 16, 17 and 27).
That the three separate acts of indecency are alleged to have occurred in the late afternoon of the days referred to, in the front yard of the same premises at [address] at a time when the accused was resident at or associated with the house next door to the front yard where the alleged indecent acts are said to have taken place coupled with the evidence of the witness [P] who upon the Crown case has identified the accused as the alleged offender in relation to the third count on the indictment.
Notice is given that tendency evidence will be given by all of the abovenamed witnesses of matters detailed in the foregoing sub-paragraphs."
Severance application
Before plea, counsel for the State indicated that it did not intend to proceed with count 1 and that a nolle prosequi would be filed. Pleas were then taken in respect of counts 2 and 3 following which an application for severance was made in accordance with the Criminal Code, s326(3). One of the arguments advanced in support of the application was claimed prejudice arising from the proposed use of the coincidence evidence. The application was dismissed. A jury was then empanelled and the trial commenced.
During the course of evidence, the accused objected to the reception of evidence of P, a student aged 14, of her identification from a photoboard of a man (who could be shown to be the accused) and corroboration of that identification procedure by a police officer.
The case as advanced by the State was that the evidence established the acts of indecency on 4 and 8 November to have been committed by the same person. In support of that claim, it relied on the coincidence or striking similarity in that both acts:
1 occurred in the late afternoon;
2 in the front yard of the same residence;
3 whilst people were walking past;
4 by a nude man wearing a beanie where a description matched, in general terms, the description given by two witnesses;
5 who performed similar physical acts.
There was other evidence admissible on both counts which established that the accused regularly visited the occupant of the adjoining house and was present at that house on the evening of 8 November.
H, who was the witness to the events of 4 November, had been unable to make an identification of the offending person by means of a photoboard procedure.
The evidence that it was the same man on each occasion was cogent and not seriously in dispute at trial. The evidence of identification by P would, given the earlier refusal of severance, have been admissible on each count.
P gave evidence on the voir dire. She stated that as she was walking home from school near the Boa Vista intersection with Letitia Street, a nude man jumped out in front of her. He was about three metres away and had covered his genitals with his right arm. She froze, did not look at his groin area, was scared and confused and, understandably, ran home. There she told her sister of the events and the two returned to the residence, but no-one answered the door. She later provided a general description of the offender to police in terms that the man:
1 was white with a chubby face;
2 had light blue eyes and a heavy body;
3 was aged approximately 38 – 40 years; and
4 was 170cm in height.
In cross-examination, she said that the beanie covered the ears, hairline and parts of his forehead. She had never previously seen the man. She did not recall seeing a mole or marking on his face, a feature which was visible in the photograph used in the photoboard procedure.
P was not shown the photoboard until 16 February 2006. Then she identified the accused, stating to the officer that she was 95 per cent certain that he was the man. The photoboard was tendered and showed a degree of dis-similarity between some of the persons portrayed and displayed the balding hairline of the accused, a matter not apparent to P on 8 November. Those matters were relevant to my exercise of discretion. Her evidence of identification was corroborated by Detective Constable Rowe. Detective Constable Rowe had obtained an order permitting the compulsory undertaking of a forensic procedure on 11 January 2006. That power was provided by the Forensic Procedures Act 2000 ("the Act"), s8, which relevantly provides:
"(1) Where a suspect is 15 years old or older ¾
(a)…
(b)a non-intimate forensic procedure may be carried out on the suspect in accordance with this Act –
(i) …
(ii) on the order of an Officer of Police."
A non-intimate procedure includes the taking of a photograph, and a suspect defined as:
"… a person whom a police officer suspects on reasonable grounds has committed a serious offence but who has not been arrested and charged with the serious offence."
There was no evidence of compliance with the provisions of s12 that the request had been made in writing.
A serious offence includes any offence punishable on indictment. The order permitted the officer to take the accused into custody and detain him "for so long as is reasonably necessary to enable the carrying out of that procedure" (s13).
The officer had not previously requested the accused to consent to the carrying out of any forensic procedure, but if she had she would have been required by the Act, s10, to inform him of:
"(a) the way in which the forensic procedure is to be carried out;
(b)that the forensic procedure may produce evidence relating to the suspect or charged person that might be used in a court of law;
(c)that the forensic procedure will be carried out by an authorised person;
(d)…
(e)…;
(f)that the suspect, charged person or parent may refuse to consent to the carrying out of the forensic procedure and that the refusal to consent to the forensic procedure may result in an Officer of Police making an order, or a police officer applying to a magistrate to make an order, authorising the carrying out of the forensic procedure, as the case requires."
The officer claimed that following detention there was some general discussion of the possibility of an identification parade. If so, there was no recording of that discussion and no way of testing its veracity. Later in the trial and after my ruling, another officer claimed that he had asked the accused whether he was prepared to permit a photograph of himself to be taken in order to exclude him as a suspect, but that the accused had declined. That evidence would not have affected my exercise of discretion. If such an offer was made, it is unverifiable and not accompanied by any evidence of compliance with the Act, s10. That matter was relevant to the exercise of my discretion. The procedure was conducted on 11 January and the photoboard not assembled until early February and, as stated, not shown to the intended witness until 16 February.
The accused was not interviewed until 29 March when he denied that he was the offender.
Evidence of identification
The photoboard procedure might be a useful tool in the investigation of a crime and the identification of potential suspects. Evidence of identification at trial is more problematic and fraught with difficulty when a witness has no prior acquaintance with the person identified or has limited opportunity for detailed or prolonged observation. In Alexander v R (1981) 145 CLR 395, the High Court analysed the inherent difficulties associated with such evidence. In his reasons at pars5 to 6, Gibbs CJ was of the opinion that:
"The safest and most satisfactory way of ensuring that a witness makes an accurate identification is by arranging for the witness to pick out from a group the person whom he saw on the occasion relevant to the crime. If an identification parade is held for that purpose, it goes without saying that precautions must be taken to ensure that no prompting, suggestion or hint is given to the witness that any particular member of the group is the suspect."
because:
"The value of holding an identification parade is not only that, if properly carried out, it provides the most reliable method of identification, but also that it is necessarily held in the presence of the accused, who is thereby enabled to observe, and later bring to light, any unfairness in the way in which the parade was conducted, or any weakness in the way in which the witness made the identification."
He thought the showing of a single photograph to a witness prior to such a procedure to be unfair. He accepted that:
"As a matter of law it would be equally admissible to prove that an identification was made by a witness who was shown a collection of photographs and selected one which he said was the photograph of the person concerned."
But identified two problems with identification by police photographs, namely:
"… the accused will of necessity be absent when the identification is made, and has no means of knowing whether there was any unfairness in the process or whether the witness was convincing in the way in which he made the identification. Secondly, the production in evidence at the trial of photographs coming from the possession of the police is very likely to suggest to the jury that the person photographed had a police record, probably for offences of the kind in question."
Questions of the reliability of the evidence, capacity of testing, the observance of appropriate procedures and general fairness were central to his reasoning. Stephen J also expressed misgivings about the use of "photo identification" being used as a matter of course and in his review of the case law distinguished between use in investigation and at trial and the problems associated with "displacement". Those concerns were repeated by Cox CJ in R v Gatty [2001] TASSC 9. (See also Tasmania v Clark [2005] TASSC 123.)
This was not a case such as that considered by the High Court in Festa v R (2001) 208 CLR 593 or by Cox CJ in R v Richardson [2002] TASSC 15.
The evidence sought to be led was admissible, but subject to the discretionary exercise of balancing probative value and prejudicial effect. There was no evidence that the accused had been properly advised of a safer and more verifiable procedure in the form of an identification parade. Such a procedure could have been offered before the exercise of a statutory power and detention. The evidence was of a "least preferred" nature.
Public policy and Ireland
This issue affected my exercise of discretion in a minor way. There was no suggestion of unlawful conduct on the part of the police officers (see the Act, s46) but they chose to first exercise statutory power, did so in a casual manner, and gave little, if any, thought to a more reliable procedure. The accused was not asked for an informed consent, nor offered an identification parade. Use of the photoboard by a potential witness was deferred, for some considerable time, because of operational reasons such as leave, pressure of work, and the like. There was limited recording of procedures so as to permit examination of reliability. Where, as here, identification is central to a case, the convenient use of a statutory power of detention and compulsory forensic procedure granted by another police officer, coupled with a single witness identification from a photoboard prepared by another officer, has the potential for wrongful conviction and abuse of power. The impact of public policy in the exercise of discretion developed by the High Court in Cleland v R (1982) 151 CLR 1, had its Australian origin in R v Ireland (1970) 126 CLR 321, a case involving the use of photographs taken against the will of the accused. The steps taken by the investigating officers (if the evidence of the evening of 8 November is included) might have been lawful, but it did not make the evidence more reliable and cogent.
Use of evidence
Evidence of identification was to be led as relevant to, and admissible on, the trial of the events of 4 November. General evidence of coincidence was admitted on the trial. But the case was, absent identification, circumstantial. Coincidence evidence was permitted by the Evidence Act 2001, s99 and the use by the State was to the effect that:
(1)evidence that the events of 4 and 8 November were committed by the same person;
(2)the accused could be shown to have a connection with the premises next door;
(3)the accused was present at those premises on the evening of 8 November;
(4)a witness had identified the accused from a photoboard as being the man present on 8 November.
The State had successfully resisted an application for severance. No criticism attaches to counsel for either the intended use of the evidence or the opposition to severance. But the two matters weigh in favour of the accused in any discretionary exercise.
Cogency, prejudice and reliability
The witness to the events of 4 November was unable to make a positive identification of the accused from an identical photoboard. The description given by both F and P to police soon after the events was of a general nature and contained some differences. The witness P was effectively the sole proof "of the accused's involvement in [these] crime(s)" (R v Gatty (supra) per Cox CJ at par9). (See also Craig v The King (1932) 49 CLR 429.) Specific matters concerning the evidence and the exercise of discretion were:
(1)The witness had no prior contact with the offender. Her observations were fleeting.
(2)His sudden appearance and conduct, understandably, caused her shock and distress, which might have affected the reliability of her identification.
(3)The facial features, especially the balding head, were obscured or reduced by the beanie. The witness had not previously identified a mole or mark on the face.
(4)The makeup of the photoboard itself might have enhanced the process of displacement and/or caused her to select the accused by a process of exclusion or elimination.
(5)The delay between incident and photoboard identification. The witness had provided a general description on 8 November 2004, but made no identification until 16 February 2006. Delay was a significant factor in my exercise of discretion.
The witness stated that she was 95 per cent sure of her identification. The prosecution sought to corroborate that degree of certainty through the evidence of the police officer who conducted the photoboard procedure. Exclusion of that portion alone would not have diminished the prejudice. It would have potentially inhibited cross-examination or resulted in the witness volunteering the opinion if questioned as to certainty.
Remedy by direction
I could not see how the matter could be remedied by the "appropriate" direction as suggested by prosecuting counsel. General directions would have been provided as to the risks of identification, but could not have been "doubled" in the case of events of 4 November. The combination of a circumstantial case with direct identification might have been compelling, and in the words of Cox CJ in Gatty (supra) at par12:
"… the use of [the] material would be so prejudicial as to constitute unfairness which no amount of detailed directions could be sure to counteract."
It is for these reasons that I excluded the evidence.
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