The Queen v Bloomfield - [2003] NTSC 9

The Queen v Bloomfield [2003] NTSC 9
PARTIES:THE QUEEN

v
JASON IAN BLOOMFIELD

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:20012135
DELIVERED:  26 February 2003
HEARING DATE:  24 February 2003
JUDGMENT OF:  BAILEY J
REPRESENTATION:
Counsel:
Applicant:S O’Connell and A Woodruffe
Respondent:  S Geary
Solicitors:
Applicant:CAALAS
Respondent:  DPP
Judgment category classification:    C
Judgment ID Number:  bai0303
Number of pages:  10

bai0303
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
The Queen v Bloomfield [2003] NTSC 9
No. 20012135

BETWEEN:
THE QUEEN

Applicant
AND:
JASON IAN BLOOMFIELD

Respondent

CORAM: BAILEY J
REASONS FOR RULING
(Delivered 26 February 2003)

Jason Ian Bloomfield was charged with three offences arising out of a single incident which occurred on 7 July 2000 at Alice Springs. The Crown alleged that the accused unlawfully entered an occupied dwelling house at night time with an intent to steal (count 1) and stole a drop saw (count 2) and two stubbies of beer (count 3).

The matter came before me on 24 February 2003 on the hearing of an application pursuant to s 26L of the Evidence Act to determine the admissibility of certain evidence which the Crown intended to lead at the accused’s trial. That evidence principally related to the identification of the accused by a witness, Jennifer Clogg, by reference to a photoboard. The Crown also intended to lead evidence of an identification of the accused by Ms Clogg in the foyer of the Alice Springs court as the accused waited for the commencement of his committal. Further, the Crown wished to have admitted as evidence a surveillance video tape recording made at the Alice Springs Casino. The video tape was alleged to show the accused, some two or three hours before the unlawful entry, wearing a jacket of a type described by Ms Clogg as having been worn by the intruder to her home.
After hearing evidence from Ms Clogg, Detective Senior Constable Isobel Cummins (who prepared the photoboard) and Commander Mark Payne (who conducted the photoboard identification procedure with Ms Clogg), I ruled that I was satisfied, on a balance of probabilities, that the accused would not receive a fair trial if the evidence relating to the photoboard procedure and the identification of the accused by Ms Clogg at the foyer of the Alice Springs court was admitted at the accused’s trial. Accordingly, I rejected admission of that evidence. I indicated that I would provide my reasons for the ruling in due course. I now set out those reasons.
Ms Clogg gave evidence that on 6 July 2000 she went to bed around 10 to 10.30pm after putting her daughter to bed. Ms Clogg’s partner stayed in the living room and watched a video. Ms Clogg gave evidence that she was awoken from sleep at around 3 to 3.30am on 7 July 2000 by the sound of someone rummaging in the wardrobe of her bedroom. She kept her eyes closed for around 10 to 15 seconds. She assumed that her partner was looking for something, possibly a jumper, in the wardrobe. When she opened her eyes, the light in the bedroom was on. She saw a part-Aboriginal man standing about a metre from the end of her bed. He was of stocky build and had brown eyes, brown curly hair cut short over his ears and a slight moustache. The man was holding a pair of shorts and said “Hello”. The man was wearing a pair of trousers (the colour of which Ms Clogg cannot recall) and a creamy-white jacket with a zip (which Ms Clogg described as a “bomber” jacket).
Ms Clogg gave evidence that she was shocked and panicked by the presence of the man in her bedroom. After the man had said hello, she screamed out to her partner: “Ray, there’s a man in the room”. The man threw the shorts on the floor and ran out of Ms Clogg’s bedroom. Ms Clogg’s partner, Raymond Bauer, pursued the man out of the house. Mr Bauer was subsequently shown a photoboard including a picture of the accused but did not identify the accused or anyone else whose photograph appeared on the board.
Ms Clogg’s evidence was that she was facing the man in her bedroom for around 10 seconds. The room was well lit and Ms Clogg claimed to have had a good look at the intruder.
Ms Clogg made a statement to the Police at around 6-6.30am on 7 July 2000. In that statement, she said that the intruder had a slight moustache, but made no reference to him having a beard. On 8 July 2000, Ms Clogg was shown a photoboard (Exhibit P1) comprised of 12 photographs, one of which she identified. The photograph identified by Ms Clogg was that of the accused which according to the evidence was taken on 7 July 2000. The photograph shows the accused with what might be described as a slight moustache and a goatee beard.
When Ms Clogg identified the photograph the procedure was recorded on video tape by Commander Payne. The video tape was marked Exhibit P2.
The video tape shows Ms Clogg pointing to the photograph of the accused and then continuing to look at the photoboard for several seconds. Ms Clogg then said: “He didn’t actually have that beard though”. Commander Payne said: “Okay, but here would you suggest he …” and was cut off from continuing by Ms Clogg saying: “I’m pretty sure it’s him”.
In evidence, Ms Clogg maintained that the man in her bedroom did not have the goatee beard shown in the photograph of the accused. Her evidence was that he had only some light stubble on his chin. She claimed to be sure that she had correctly identified the accused as the man in her bedroom. She was also of the opinion that the photograph of the accused on the photoboard could not have been taken on 8 July 2000 (because of the obvious presence of a beard).
Ms Clogg was asked why she had told Commander Payne that she was “pretty sure” that the photograph she identified was that of the intruder. She said:
“I don’t know why I said I’m pretty sure …”
“I don’t – I’m not sure why that was said. I don’t know. I was a bit nervy – nervous, actually, about going there and I’m – I’m not very good with being in the courts and stuff. I don’t really like all that. Maybe that’s why I said it.”
With respect to Ms Clogg’s identification of the accused in the Alice Springs court foyer, Ms Clogg gave evidence that on 1 March 2002, she had seen the accused sitting with three or four Aboriginal people on a bench outside the courtroom. She cannot now describe the people that the accused was sitting with nor say whether they were male or female.
The surveillance tape recorded at the Alice Springs Casino (Exhibit P3) was taken at 00.55am on 7 July and runs for around 3 minutes. The video is recorded in black and white and shows the accused in a light coloured jacket or sweater with a zip at the front and a collar. The video also clearly depicts that the accused had a goatee beard.
In Alexander v R (1981) 145 CLR 395, the High Court upheld the admissibility of an identification made by the use of a photoboard. Gibbs CJ at 402 held:
“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 opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused.”
In Kirk Pitkin (1995) 80 A Crim R 302, Deane, Toohey and McHugh JJ pointed to the danger of admitting photoboard identification evidence and stressed the need for a clear, firm and unambiguous identification if such evidence was to be put forward as justifying conviction beyond reasonable doubt. At p 305, their Honours observed:
“The use of photographs of suspects by law enforcement agencies for the purpose of identifying an offender is a necessary and justifiable step in the course of efficient criminal investigation. Nonetheless, it is attended by some danger of consequential and unfair prejudice to an accused. One such danger is that identification through a photograph is likely to be less reliable than direct personal identification since differences in appearance between the offender and a suspect may be less noticeable when a photograph of the suspect is used. In that regard, once there has been purported identification through a photograph, any subsequent direct identification may be less reliable by reason of the subconscious effect of the photograph upon the witness’s recollection of the actual appearance of the offender. 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. Yet another danger from the point of view of an accused is that a witness’s evidence that she identified a photograph of the accused which was in the possession of the police may suggest to the jury that the accused either has a criminal record involving the relevant kind of crime or is otherwise unfavourably known to the police as a person likely to commit that kind of crime. That danger of prejudice is likely to be increased in a case, such as the present, where the police have produced a number of different photographs of the accused taken at different times.
In the context of the above danger of prejudice to an accused in prosecution evidence of identification by a witness’s earlier selection of a photograph or photographs, ordinary considerations of fairness dictate that any such evidence be subjected to careful scrutiny before it is accepted as constituting evidence of positive identification. If words which are reasonably capable of being understood as consistent with an absence of positive identification are used without further explanation or elucidation, there is no question of impugning the language of the witness in denying the independent efficacy of the words as positive identification. All that is involved in such a denial is the application of the fundamental principle that proof of guilt must be beyond reasonable doubt. That point was made by Mason CJ, Dawson and Toohey JJ in Knight (1992) 175 CLR 495 at 502-503:
‘In those circumstances, the reasoning process which must be employed if the onus of proof beyond reasonable doubt is to remain upon the prosecution is well recognised. As Dixon J said in Martin v Osborne (1936) 55 CLR 367 at 375:
‘If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation.’
In Plomp (1963) 110 CLR 234 at 243 Dixon CJ cited his previous observation in Martin v Osborne and acknowledged the difficulty found in stating the rule, a difficulty which he said ‘has not been overcome by employing the expression ‘more consistent’ as if there could be degrees of consistency’.
…
There are not, as Dixon CJ observed, degrees of consistency and, if a reasonable jury ought to have found that an inference or hypothesis consistent with innocence was open on the evidence, then it ought to have given the appellant the benefit of the doubt necessarily created by that circumstance.’
Under our system of administering criminal justice, a person is not to be convicted of serious crime on the sole basis of a verbal ambiguity.”
In the present case, I consider that Ms Clogg’s identification of the accused by reference to the photoboard was not clear and unambiguous. Ms Clogg’s reference to being “pretty sure” are “words which are reasonably capable of being understood as consistent with an absence of positive identification” (supra). Ms Clogg was not able to explain why she said only that she was “pretty sure” beyond speculating that she may have been nervous at participating in the photoboard procedure.
The risk that Ms Clogg is mistaken in her identification of the accused is compounded by her insistence that the intruder to her bedroom had only light stubble on his chin, not a goatee beard. It was her firm opinion that the photograph of the accused which she identified could not have been taken on 7 July 2000. The unambiguous evidence, which I accept, is that the photograph was taken on 7 July 2000. Further, the surveillance video tape from the Casino clearly shows the accused had a goatee beard in the early hours of 7 July 2000.
The circumstances in which Ms Clogg had an opportunity to see the intruder in her bedroom were far from ideal. She had awoken after several hours sleep. She observed the intruder for around ten seconds. It is highly likely that some of this time would have been required for her eyes to adjust from the darkness of sleep to the brightly lit bedroom. The accused was not previously known to Ms Clogg.
I consider that the combination of the limited circumstances in which Ms Clogg had an opportunity to observe the intruder and the ambiguity in her identification of the accused’s photograph are such that it would be unfair to the accused to admit the photoboard identification evidence. Such evidence would be gravely prejudicial to the accused but falls well short of what is required to secure a verdict of guilty beyond reasonable doubt.
The case for admitting the photoboard identification evidence is not, in my view, strengthened by Ms Clogg’s identification of the accused at the foyer of the Alice Springs court. Ms Clogg had purported to identify the accused by reference to his photograph in the photoboard and would have expected that the person she had identified would be present at the court. In Pitkin, supra, the High Court emphasised (at p 305) “… once there has been purported identification through a photograph, any subsequent direct identification may be less reliable by reason of the subconscious effect of the photograph upon the witness’s recollection of the actual appearance of the offender.” (and see Murphy J in Alexander v R, supra at 436). The danger of a mistaken identification is increased in the present case by reason that Ms Clogg’s identification of the accused’s photograph was not unambiguous.
After seeing and hearing Ms Clogg give evidence, I am in no doubt that a jury would find her credible and persuasive. However, even the most honest witness can be mistaken. In my view, the risk of unfair prejudice to the accused is too great to allow the case to proceed on the basis of the present identification evidence.
In ruling on this matter on 24 February, I indicated that I was not persuaded that admission of the Casino surveillance video tape into evidence would be unfair to the accused. While I remain of that view, the admissibility of this piece of evidence is of no practical significance in the absence of the photoboard identification evidence and the evidence of Ms Clogg’s identification of the accused at the Alice Springs court foyer. More significantly, I do not consider that the surveillance video tape strengthens the case for admission of the evidence I have rejected. Any support the video tape gives to Ms Clogg’s identification of the accused as the intruder by reference to his clothing is undermined by the prominence of his goatee beard, which is clearly visible on the video tape.

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