The Queen v Do - [2021] NTSC 42

CITATION:The Queen v DO [2021] NTSC 42
PARTIES:THE QUEEN
v

DO

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory Jurisdiction
FILE NO:22019243
DELIVERED:  18 May 2021
HEARING DATE:  14 May 2021
JUDGMENT OF:  Grant CJ
REPRESENTATION:
Counsel:
Crown:D Castor
Accused:A Abayasekara
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:Northern Territory Legal Aid Commission
Judgment category classification:    C
Judgment ID Number:  GRA2107
Number of pages:  17

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v DO [2021] NTSC 42

No 22019243
BETWEEN:

THE QUEEN

AND:

DO

CORAM: GRANT CJ
EDITED REASONS FOR JUDGMENT
(Delivered ex tempore on 18 May 2021)

The accused is charged with one count of aggravated robbery contrary to s 211 of the Criminal Code 1983 (NT).
Two matters require determination as preliminary issues in advance of the trial. The first is whether tendency evidence sought to be adduced by the Crown is admissible. The second is whether identification evidence sought to be adduced by the Crown should be excluded in the exercise of the general discretion. The defence contends that both categories of evidence are inadmissible.

Tendency evidence

I will deal first with the tendency evidence. The principles which govern the admissibility of tendency evidence are now relatively well-settled. Section 97 of the Evidence (National Uniform Legislation) Act 2011 (“the ENULA”) provides for the admissibility of tendency evidence subject to the requirements of notice and significant probative value.
The Dictionary in the ENULA defines “probative value” of evidence to mean “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”. The evidence will have “significant probative value” if it could rationally affect the assessment of the probability of the existence of one or more of the facts in issue in some important fashion. The assessment is a two-step process.
In the first step, the assessment is whether the evidence concerning the previous conduct would be probative in establishing the tendencies alleged by the Crown.
If it is accepted that an inference of tendency could be sustained, the second question is whether that tendency makes it more probable that, on this occasion, it was the accused who engaged in the conduct alleged in the indictment.
In this particular case, the fact to which the tendency evidence is said to relate is whether the person who committed the robbery was the accused. In other words, the issue in the proceeding to which the tendency evidence is directed, and in fact the sole issue in dispute in the proceeding, is the identity of the perpetrator. The parties are in agreement on that matter.
In the ordinary course, the existence of a “striking similarity” or “underlying unity” between the conduct charged and the incidents described in the evidence sought to be adduced for tendency purposes is not a necessary requirement for admissibility under the statute. However, the requirement for striking similarity or underlying unity remains important to the question of admissibility in cases where the evidence is directed to establishing the identity of the offender. As already stated, identity is the sole issue in dispute in this matter. The question is whether the features of commonality or peculiarity which are relied upon are significant enough logically to imply that because the accused committed the previous acts identified in the tendency notice, or committed them in those particular circumstances, it is likely that he was the person who committed this offence.
The features of commonality relied on by the prosecution are that the previous offences were all committed at night, that the victims were all young males, and that in two out of three of the cases there was some stealing of items after the assault had been committed. While those matters may be accepted, and while those similarities may be sufficient to qualify the evidence for tendency purposes in circumstances where the issue in dispute is something other than identity, the three earlier offences are insufficiently striking in similarity or unity with the present offence to have significant probative value in this case. The most recent incident in time was essentially a brawl outside a Darwin nightclub in the early hours of the morning. The two incidents which took place in Western Australia in 2017 were also assaults which involved very different facts and circumstances to the offence charged. It could not be permissibly reasoned that the fact that the accused committed those offences makes it more probable that he was the individual who committed the present offence.
Even were not that not so, s 101 of the ENULA provides that tendency evidence cannot be used against a defendant unless its probative value substantially outweighs any prejudicial effect. The real risk in this case is that the admission of the evidence concerning the accused’s prior conduct may divert the jury from a proper consideration of the evidence concerning the subject incident, and give it a probative significance which it simply does not deserve.
For these reasons, I rule that the tendency evidence sought to be adduced by the Crown is inadmissible in the trial.

Identification evidence

I turn then to the challenge to the identification evidence. There are two categories of identification evidence. The first is an identification made by the victim and one of the witnesses from a Facebook photograph of the accused. The second is an identification made by the victim at a later time from a photoboard put together by police. It is necessary to set out the timeline in which those events occurred.
At or about 1 AM on the morning of 25 April 2020 the male victim and two female friends drove to the Nightcliff Jetty. They parked near the entrance to the car park. A group of young males then approached the car. One of them spoke to the female sitting in the front passenger seat.
The female sitting in the front passenger seat of the vehicle says that she recognised the male who spoke to her as a person she thought was Kieran Mu. The person she thought was Kieran Mu then approached the driver’s side window and started talking to the male victim. A second person, who appeared to be of African descent, then came up to the driver’s side window. The male victim also thought that this other person was of African appearance, and possibly Sudanese. The allegation is that the other person lent through the open window of the male victim’s vehicle and said, “Why are you staring on my bro”. He then struck the male victim in the chest and tore the chain necklace the male victim was wearing from around his neck. He put the necklace into his pocket. After he had done so he lifted his shirt up to show he had a hammer tucked into his pants. While doing so, he said to the male victim, “Don’t start on me bro, I have a fucking hammer and I will smash your face in and then I’ll smash your car”.
The male victim then drove out of the area to the Casuarina Police Station and reported the matter. After they had made the initial report and were driving back to the residence of one of the female passengers, the female witness who had been sitting in the front passenger seat decided to look through Kieran Mu’s Facebook profile to see if she could recognise the assailant. In the course of doing so she realised that the person she had seen was in fact Nathan Mu, who was Kieran Mu’s brother. She then went to Nathan Mu’s Facebook profile and saw a group photograph of six males posted on that profile. In that photograph she recognised the person of African descent who had stolen the male victim’s necklace. The male victim also recognised that person as the one who had stolen his necklace.
In the photograph, the alleged perpetrator was tagged as Daniel Johnie. They then looked at Daniel Johnie’s Facebook page and saw that in his profile picture he was wearing the same clothes he had been wearing that night. Both the male victim and the female passenger were of the opinion that the person depicted in the photographs was definitely the person who had taken the necklace. They then drove back to the Casuarina Police Station and attempted to report the matter. The police station was unattended at that time, and they were only able to advise police by telephone of the name of the person who they said had stolen the chain.
On 21 May 2020, the male victim attended at the Casuarina Police Station for the purpose of participating in a photographic identification parade. At that time, the male victim was shown a “photoboard” which contained the headshot images of 12 males of African descent of approximately the same age and colouring as the accused. The male victim indicated that image number 3 was a photograph of the person who had stolen his necklace. That photograph was a headshot of the accused, and a different photograph to the one on Facebook from which the accused had originally been identified.
The parties are in agreement that these circumstances are not such as to implicate those provisions directed specifically to identification evidence in ss 113 to 115 of the ENULA. In this particular case, it was not possible for the initial identification to have been made during the course of a controlled photoboard process. The identification occurred from photographs before the accused had been identified and isolated as a suspect by police. So far as the subsequent photoboard process was concerned, a sufficiently substantial number of photographs were used for that purpose, and those photographs were of people sufficiently similar in appearance to the accused.
The question is exclusively one of whether the identification evidence should be excluded in the exercise of the discretion under s 137 of the ENULA on the basis that its probative value is outweighed by the danger of unfair prejudice to the accused.
At the risk of doing some disservice to the comprehensive and carefully crafted submissions made by counsel for the defence, the nub of the objection is as follows. Because the initial identification from the Facebook page was made in circumstances where the sole purpose and effort of that search was to find the purported offender on that page, that identification was contaminated by suggestion and projection. That contamination was said to be compounded by a number of further matters.
First, the victim and the witness had identified the perpetrator as a person of African descent, and the accused was the only person of African descent in the photograph from which he was identified. Moreover, it was effectively a “single photo” identification which did not involve placing a neutral photograph of the accused in a group of photographs of similar looking people.
Secondly, the circumstances in which that identification was made were not controlled as they would otherwise have been in the context of an identification parade. Apart from anything else, it is said that those circumstances may have led to some degree of subconscious collusion or contamination by which each of the witnesses’ perceptions were influenced and reinforced by the other.
Thirdly, there was an initial confusion on the part of the witnesses as to whether the perpetrator’s associate was Kieran or Nathan Mu, which was said to further undermine the probative value of the witnesses’ identification of the purported offender.
Fourthly, the circumstances in which the identification was made militate against its reliability, in the sense that it was dark and the interaction between the perpetrator and the witnesses was relatively fleeting.
The argument follows that once the identification had been made in those circumstances, the implication or suggestion of the accused as the perpetrator was embedded into the consciousness of the witnesses, and contaminated the subsequent formal photoboard identification. In other words, there was the real danger of an effect by which the appearance of the perpetrator was displaced by the image of the accused which the male witness had initially seen on the Facebook page.
It is no doubt the case that the courts have long recognised the potential dangers of identification evidence where its reliability is disputed. As was observed in Festa v The Queen (2001) 208 CLR 593 at [160], the fundamental danger is of unconscious projection by which a witness sees what he or she wants or expects to see. In determining whether to exercise the discretion to exclude identification evidence the court must decide whether the directions required to be given to guard against that danger will be sufficient to overcome the prejudice that might ensue without those directions. If the evidence is weak and the risk of prejudice remains, then the evidence should be excluded: see Festa v The Queen (supra) at [65].
It is also no doubt the case that single person identification is regarded as inherently unreliable: see Alexander v The Queen (1981) 145 CLR 395 at 426. However, this was not a single person identification in the generally accepted sense, in which an accused is identified by the witness when, for example, being led into a police station or from the dock. The accused was identified from a photograph which formed part of a group of photographs on a Facebook profile, and which depicted six young males, albeit subject to the distinction in ethnicity to which reference has already been made.
This is also not a case of semblance evidence, where the witnesses have stated only that the accused looks like the person in the photograph. The witnesses have positively identified the accused from the Facebook photograph as the perpetrator of the robbery.
The fundamental rule in these circumstances is that visual identification evidence is not admissible where the person who made the identification has somehow been improperly or unsafely influenced to identify the accused. There is no suggestion by the defence in this case that some positive attempt was made to influence the witnesses to identify the accused. The defence submission is rather that influence arose from the suggestibility inherent in the circumstances of the identification.
The authorities in relation to Facebook identification evidence were conveniently summarised in Western Australia v Roe [2017] WASC 124 at [34]-[49]. Of particular note are the following principles.
(a)The risks associated with Facebook identification are more pronounced where the victim is given the name of the alleged offender and searches for the person by that name, particularly where the identification is a product of hours of staring at the named person’s photographs: see Strauss v Police (2013) 115 SASR 90 at [34]; R v Crawford (2015) 123 SASR 353 at [29]-[36], [165].
(b)The fact that the witness goes on to Facebook with an expectation that someone’s associate has been involved in the offence does not operate decisively against admissibility: see Dia v The Queen [2014] NSWCCA 9 at [66], [68]. The process of identification is analogous with examining a photographic array. While there are dangers in such a process of identification, it is prima facie an acceptable method of identification and evidence concerning such identification is admissible if the potential prejudice may be cured by proper directions at trial.
(c)Where the identification evidence is probative, the question will be whether the frailties in that evidence give rise to a danger of unfair prejudice. Frailties such as the fact that the victim has given only a limited description to police after the offence, the circumstances of the initial observation, and the suggestibility involved in searching Facebook are matters which the jury are capable of evaluating with the benefit of proper judicial directions. The reliability of an identification from a Facebook page is thus pre-eminently a jury question: see Peterson v The Queen [2014] VSCA 111 at [55]-[56].
I accept the prosecution’s submission that this case is far removed from the circumstances which were considered in Bayley v The Queen [2016] VSCA 160, in which the alleged victim’s identification of the appellant took place 12 years after the rape in question, and was based on a photograph accompanying a Facebook story about the murder of a journalist in Melbourne which described the person depicted in the photograph as the principal suspect.
Against that background, there is no doubt that the probative value of the evidence in this case is high in the sense that it is important, and in fact crucial, in the Crown case. There is nothing beyond the witnesses’ identification which links the accused to the commission of the crime. However, that is not the only sense in which the probative value of the evidence falls to be assessed. That assessment also includes the quality of the evidence.
There are a number of factors relevant to that assessment which might be said to diminish the probative value of the evidence.
First, the witnesses had no prior familiarity with the accused which might enhance the reliability of the identification.
Secondly, the fact that the accused belongs to a different racial group to the witnesses may tend to reduce the probative value of their identification evidence.
Thirdly, there is nothing in any description given by the witnesses to police in the immediate aftermath of the incident which would positively confirm the identification subsequently made. Having said that, there is little which might have been said beyond the fact that the perpetrator was a young male, of African appearance and dressed in dark clothing. It is difficult to see how a description to the effect that the perpetrator was clean-shaven, for example, would have operated to significantly or substantially bolster or confirm the identification subsequently made. While any material discrepancy between the description given initially by the witnesses and the appearance of the accused may operate to reduce the probative value of the identification, it does not necessarily follow that the absence of a detailed description reduces the probative value of the identification: see generally Domican v The Queen(1992) 173 CLR 555 at 562.
Fourthly, the fact that both witnesses were involved in the original identification from the Facebook page may have been suggestive, and may reduce the probative value of the original identification.
On the other hand, there are a number of factors relevant to that assessment which enhance the probative value of the evidence, or at least do not operate to diminish it.
First, the circumstances of the perception in this case do not necessarily reduce the probative value of the evidence. Although the incident took place at night, the evidence of the male victim is that the area was well-lit. The male victim was in very close proximity to the perpetrator during the course of the interaction, in that they were face-to-face through the window of a motor vehicle and the perpetrator was close enough to take the chain from around the victim’s neck. There was at least some verbal exchange between them. The female witness was in the passenger seat, also within a very short distance of the perpetrator’s face.
Secondly, there is nothing to suggest that the witnesses were under any great deal of stress the time, beyond what might ordinarily be expected in those circumstances. It appears that the circumstances did not become fraught until the perpetrator grabbed the victim’s necklace.
Thirdly, the witnesses are young, and there is nothing to suggest that they suffer any impairment of eyesight, hearing, concentration or perception. There is nothing to suggest that the witnesses were intoxicated by alcohol or any drug at the time. There is also nothing which would suggest any element of insincerity, although that is not a particularly significant consideration when dealing with identification evidence.

Fourthly, only a relatively short period of time elapsed between the initial perception by the witnesses and the subsequent identification on the Facebook page. Although counsel for the defence was at some pains to suggest that the identification may have been the product of hours of poring over the photographs, there is nothing to suggest it was not initially spontaneous rather than studied. In any event, that is a matter which may be subject to cross-examination, submission and direction at trial.
Fifthly, there is nothing to suggest that the mode of first identification was such that it would have contaminated the subsequent identification in the formal photoboard process by displacing the original memory of the witness. As I have already said, this was not, for example, a dock identification or a “showing” which carried any inherent suggestion that the accused was the perpetrator. This was also not a case in which there was a high degree of explicit or implicit suggestion that the person depicted in the photograph on the Facebook page was the perpetrator. The most that can be said is that the relevant difference in appearance between the accused and the other subjects in the photograph might have carried with it some element of suggestion. That is also a matter which may be subject to cross-examination, submission and direction at trial.
Turning then to the question of unfair prejudice, there was nothing in the photograph by which the accused was initially identified to suggest that he had a prior criminal record or had previously been arrested. It was a photograph taken with peers in a social setting.
There was no improper conduct on the part of police.
As already noted, there are stringent requirements for jury directions where identification evidence represents a significant part of the proof of guilt of an offence. The trial judge must warn the jury regarding the dangers of convicting on such evidence where its reliability is disputed.
The relevant risk of prejudice in this case lies in the fact that the jury may overestimate the probative value of the identification evidence. While it may be accepted that cross-examination of the witnesses may not be an entirely effective test of the quality of the evidence, it is to be assumed that the ordinary judicial directions given in relation to identification evidence will be understood and followed by the jury.
I am not satisfied in this case that the quality of the initial identification evidence falls short of the point where its frailties cannot be cured by an appropriate caution to the jury.
Turning then to the photoboard identification, it may be accepted that its probative value is potentially reduced by the fact that it was conducted after the witnesses had already identified the accused from the Facebook photograph. Having already identified the accused in the absence of a parade, the photoboard identification might have simply confirmed that initial identification rather tested the victim’s ability to make an identification: see, for example, R v D (2008) 187 A Crim R 521 at [47]-[52]. In this case, however, the assessment of the probative value of the photoboard identification will turn almost entirely on the jury’s assessment of the reliability of the original identification.
For these reasons, I rule that both categories of identification evidence are admissible in the trial.

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