The Queen v AW - [2017] NTSC 3

The Queen v AW [2017] NTSC 3
PARTIES:THE QUEEN

v
AW

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:21554748
DELIVERED:  13 January 2017
PUBLISHED:  18 January 2017
HEARING DATES:  24 & 25 October 2016 and 9 January 2017
JUDGMENT OF:  SOUTHWOOD J
CATCHWORDS:

EVIDENCE – Sexual intercourse without consent – admissibility of photo board identification evidence – whether the evidence of the complainant’s photo board identification evidence is admissible under s 137 of the Evidence (National Uniform Legislation) Act 2013 – where the photograph of the accused is the only image on the photo board that encompassed the primary descriptors given by the complainant – where the complainant selected the photograph of the accused because she recognised him –probative value of the photo board identification is not outweighed by the danger of any unfair prejudice – evidence relevant and admissible – Evidence (National Uniform Legislation) Act 2013 (NT) s 137
Criminal Code (NT) s 192, s 192(3)
Evidence (National Uniform Legislation) Act 2013 (NT) s 137
R v Blick [2000] NSWCCA 61; R v Fisher [2001] NSWCCA 380; Knight v Brown (2004) 183 FLR 135, referred to.
REPRESENTATION:
Counsel:
The Queen:T McNamee
AW:M Aust
Solicitors:
The Queen:Office of the Director of Public Prosecutions
AW:North Australian Aboriginal Justice Agency
Judgment category classification:    B
Judgment ID Number:  Sou1702
Number of pages:  7

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v AW [2017] NTSC 3

No. 21554748
BETWEEN:

THE QUEEN

AND:

AW

CORAM: SOUTHWOOD J
REASONS FOR JUDGMENT
(Published 18 January 2017)
Introduction

The complainant complains that at about 5.00 am on 5 November 2015 she was sexually assaulted while staying at the house of Mr Charles Sapi. At 12.27 pm on 6 November 2015 she made a photo board identification of the accused. Before being shown the photo board, the complainant was told that the person who assaulted her may or may not be amongst the photographs on the board. The recording of the photo board identification shows the complainant took about 20 seconds to identify the accused and she appears to have briefly looked at the whole of the board prior to doing so. The complainant then said, “Yeah, number 2. That one. That is number 2. I think it is number 2. Yeah, number 2.” Photograph number 2 on the photo board is a photograph of the accused.
Under s 137 of the Evidence (National Uniform Legislation) Act 2013 (NT), the defence has asked the Court to refuse to admit the evidence of the complainant’s photo board identification of the accused because it is submitted that the probative value of that evidence is outweighed by the danger of unfair prejudice.
Counsel for the defence initially put the defence case on the following two grounds.
First, the probative value is lessened where the witness, who gave the identification evidence, believes, or may believe, the accused person has been apprehended. This arises from a natural desire to ensure that the police suspect is detained and charged. Second, the photo array does not contain an array of people who match the description of the accused given by the witness. It was submitted that this is particularly problematic where a photo array includes one or two persons that possess a significant feature of the victim’s description.
These grounds were abandoned during the course of oral argument. There was no evidence that the complainant believed the accused person had been apprehended.
The defence submits that the identification evidence is of no probative value because the composition of the photo board wrongly influenced, or strongly suggested, the identification of the accused because the photograph of him was so conspicuous. His photograph was the only photograph that depicted the striking features of a Torres Strait Islander man, and the only photograph that matched all of the elements contained in the complainant’s description of the man who assaulted her.
In support of this contention, defence counsel, Mr Aust, relied on a series of decisions where the photo board evidence was successfully attacked. In each case the challenge which was upheld was that the accused was the only one of those included on the relevant photo board whose appearance had a highly distinctive feature, that feature having itself been an identifying factor in the witness’s mind. He referred to R v Blick,[1] R v Fisher[2] and Knight v Brown.[3] In those cases, respectively, the accused was the only person with a goatee beard; the only person who matched the description of the offender as being of Aboriginal appearance with long hair; and the only person with red hair.
While acknowledging that there are many differences in the appearance of members of any group of people, the defence says that the accused does have the striking or quintessential appearance and bearing of a proud Torres Strait Islander man. The size and shape of his head, his pronounced forehead and nose are features very often seen in Torres Strait Islander men but not in other groups of men in such a pronounced way. Furthermore, while there may be two or three photographs on the photo board which depict men with less pronounced features of Torres Strait Islander men, who may be of Torres Strait Islander descent, those men do not have short curly hair. The accused’s photograph is the only image on the photo board that encompasses the primary descriptors provided by the complainant – short curly hair, solid and Torres Strait Islander. Four of the photographs on the photo board depict men with shaved heads, another two or three photographs do not depict men with curly hair and it is apparent that some of the men do not have a solid build. Those photographs of men with curly hair are of men who do not look like they are of Torres Strait Islander descent. There is some force in this submission.
The defence says their contention is supported by the evidence of the complainant during the voir dire. Her evidence was as follows.
All of the men who were present on the night were Torres Strait Islander looking men. She told the police that the man who assaulted her was a Torres Strait Islander man who had short curly hair. When she was looking at the photos on the photo board she was looking for a Torres Strait Islander man. There were only Torres Strait Islander men present on the night before the alleged assault. Photograph number 2 stood out from all the other photographs. Photograph number 2 was clearly a photograph of a Torres Strait Islander man.
There were the following questions and answers:
Mr Aust:And that number 2, in your opinion, is clearly a Torres Strait Islander man, is that correct?
Complainant: Yeah
Mr Aust:Is it true to say that all of those other photos, those men don’t look like Torres Strait Islander men?
Complainant: No, none of them. Only that number 2.
The complainant also gave evidence that she selected photograph number 2 because he was there. By that statement, I take the complainant to mean that the person shown in photograph number 2 was present at Mr Sapi’s house at the time of the incident. There were also the following exchanges.
Mr Aust:Number 2, he stood out from all those other photographs that you looked at, didn’t he?
Complainant:       Yes, that is him. Torres Strait Islander. Torres Strait Islander. [By the statement “that is him” I take the complainant to be saying she made the selection because he is the person who sexually assaulted her.]
Mr Dalrymple:     When you chose number 2, were you choosing that photo because it was a TI man?
Complainant:       Yeah.
Mr Dalrymple:     Or because that man was there on the night?
Complainant:       Yeah, he was there. Because he was there.
In my opinion this case is distinguishable from the line of authorities referred to by Mr Aust. This is more a case of recognition than identification and the complainant’s evidence is in effect that she looked for a Torres Strait Islander man on the photo board because she had been with Torres Strait Islander men and she picked photograph number 2 because he was a man who was there and it was him who sexually assaulted her.
The complainant’s evidence that she selected photograph number 2 because the accused was there is supported by the evidence of Selina Richardson, Kurra James Bann and Charles Sapi. They all give evidence that the accused was present at Mr Sapi’s house.
In her forensic interview the complainant states the following.
On 4 November 2015 she was drinking with her niece at East Point. They went there at 3.00 pm. At about 7.00 pm she told her niece that she wanted to go home. Her niece said that she would call a friend to come and pick them up and eventually her boyfriend came down the beach with two other friends. They were all Torres Strait Islanders. After the men arrived they drank some more alcohol at the beach. They finished drinking and went to Selina’s boyfriend’s place.
They drank some more alcohol at his house in each other’s company. It is not completely clear, but it seems as though they were all in each other’s company for a number of hours. The complainant then went to sleep in one of the rooms. While she was asleep a man jumped on top of her and tried to have sex with her. He inserted his penis half way into her vagina. She described the three men who were at Mr Sapi’s house. The police officer conducting the forensic interview wrote down the description she gave of each man and numbered the men as male 1, male 2, and male 3. She said it was probably the third man, the one with curly hair, a man who fits the description of the accused, who sexually assaulted her. He is a Torres Strait Islander. It is the third man who she recognised and identified on the photo board, and it is not surprising that when she was given the photo board she started her consideration of the photographs by looking for Torres Strait Islanders.
In the circumstances, I am satisfied that the composition of the photo board did not wrongly influence, or strongly suggest, the identification of the accused because the photograph of him was so conspicuous. Rather, she selected the photograph of the accused because she recognised him as the man who was at Mr Sapi’s house. Consequently, no unfair prejudice arises as a result of the photo board identification.
I rule that the evidence of the photo board identification made by the complainant is relevant and admissible. The probative value of the photo board identification is not outweighed by the danger of any unfair prejudice.
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[1] [2000] NSWCCA 61.

[2] [2001] NSWCCA 380.

[3] (2004) 183 FLR 135.