The State of Western Australia v Bilos - [2009] WASC 113

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- BILOS [No 2] [2009] WASC 113

CORAM: JOHNSON J

HEARD: 13 MARCH 2009

DELIVERED : 4 MAY 2009

FILE NO/S: INS 78 of 2008

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecutor
AND
ROBERT GEORGE BILOS
Accused

Catchwords:

Admissibility of identification evidence - Recognition of ex-partner in surveillance photographs of bank robbery - Whether jury is in as good a position as witness to determine whether accused is the offender in the photograph

Legislation:

Nil

Result:

Challenge to admissibility of evidence dismissed

Category: B

Representation:

Counsel:

Prosecutor: Mr L Hobson
Accused: Mr A E Eyers

Solicitors:

Prosecutor: Director of Public Prosecutions (WA)
Accused: Mark Andrews Legal Pty Ltd

Case(s) referred to in judgment(s):

Alexander v The Queen (1979 ‑ 1980) 145 CLR 395
R v Goodall [1982] VR 33
R v Palmer (1981) 1 NSWLR 209
Smith v The Queen [2001] HCA 50
Stockwell (1993) 97 Cr App R 260

JOHNSON J: The accused, Robert George Bilos, is charged, on indictment, with one count of armed robbery and has pleaded not guilty to that charge. It is not in dispute that on 4 June 1998 at Rockingham an armed robbery occurred at the Australian & New Zealand Banking Group Limited, trading as ANZ Bank. It is the identification of the accused as the offender which is the sole issue for determination at the accused's trial to commence on 5 May 2009.
Following the commission of the offence, arrangements were made to retrieve the film cartridges from the still security camera units installed in the bank. A series of photographs were developed from the film cartridges and show the offender at various locations within the bank.
One of the identification witnesses which the State seeks to call at trial is Debbie May Bilos, the accused's ex‑wife. Her evidence on the issue of identification is in the following terms:
On November, 2008 Detective Hindriksen has shown me a series of four photographs of people in a bank.
I recognised a male person wearing dark pants and a long sleeved shirt as my ex husband Robert Bilos.
In those photos Rob has his hair slicked back and had a bit of growth on his face.
I have no doubt whatsoever that the person in the photographs I was shown is Robert Bilos.
The evidence of Debbie May Bilos does not only address the issue of identification. She also alleges that a few months after they met the accused told her he had something to tell her but was worried about how she would react. He told her he had held up the ANZ Bank at Rockingham City. He told her it happened a few months before they met and he explained how he did it. He also said that he obtained a couple of thousand dollars from it.
Mrs Bilos further states that in February 2008 she became aware that the accused had been charged by police with the robbery of the ANZ Bank which had taken place over 10 years before. She alleges that she went to the accused's mother's house on either the day the accused was charged, or the day after. The accused was at home with his mother and his two sisters. There was a family discussion about the accused being charged and, according to Mrs Bilos, the accused said to her that she might have to help him out by saying that they had met earlier than they actually had. Mrs Bilos also alleges that there was a further discussion in relation to finding someone to provide an alibi for the accused.
Mrs Bilos further states that, after seeing the photographs and with what the accused had previously told her, she has no doubt that he did the robbery at the ANZ Bank at Rockingham.
Mrs Bilos was not in a relationship with the accused at the time of the offence. On her evidence, she met the accused in late August or early September 1998, approximately three months after the offence. They became friends and a relationship developed between them. Within a few weeks of meeting, the accused moved into Mrs Bilos' house with her and her two children from a previous marriage. They eventually married on 8 September 2001 but separated in December 2006 with the accused moving out of the house they had jointly purchased the year before. There were no children of the marriage. According to Mrs Bilos, the separation was not amicable and there have been ongoing issues between them resulting in each of them taking out restraining orders on the other.
The accused challenges the admissibility of Mrs Bilos' purported identification of him as the offender from the ANZ Bank surveillance photographs and seeks a ruling on that issue prior to trial. In particular, reliance is placed on the following points:
(a)That on the date of the offence Mrs Bilos was not in a relationship with the accused and their relationship did not commence until approximately three months after the offence, in August or September 1998;
(b)That the subsequent and ongoing period of separation has been acrimonious to the extent that mutual restraining orders have been sought by the parties;
(c)That Mrs Bilos did not tell the detective investigating the offence of the accused's confession until January 2008;
(d)That in the period following February 2008 when the accused was charged with the offence and discussions about creating a false alibi allegedly took place, the relations between Mrs Bilos and the accused deteriorated even further,
(e)In September 2008, Mrs Bilos handed photographs to investigating police officers purporting to show the accused several months following the first meeting of the witness and the accused (presumably, therefore, in 1998) but such photographs are not exhibits in this case.
In support of the objection to the admissibility of Mrs Bilos' evidence, counsel for the accused relies on the decision of the High Court in Smith v The Queen [2001] HCA 50. In that case, the court held that the purported identification by two police officers of the appellant as the offender shown in bank surveillance photographs was inadmissible: [11]. The two police officers, who gave similar evidence, each said that he had previous dealings with the appellant and that he recognised the person depicted in the bank photographs as the accused: [5]. The reasoning of the majority (Gleeson CJ, Gaudron, Gummow and Hayne JJ) was that the disputed identification evidence was not relevant and should not have been received: [11], [12]. The basis of that conclusion was that the witness' assertion of identity was founded on material no different from the material available to the jury from its own observation and hence the witness' assertion that he recognised the appellant was not evidence that could rationally affect the assessment by the jury of whether the appellant was the person shown in the photographs, and hence the evidence was not relevant: [11].
The remaining judge, Kirby J, held the evidence to be relevant but concluded that it was lay opinion upon a subject about which the jury members were required to form their own opinion and consequently the evidence was inadmissible: [41], [61].
In considering the reasoning of the majority, it is important to focus on the relevant factual circumstances because they do differ substantially from those that apply in this case. The only evidence led with respect to whether the appellant was the person shown in the photographs was the evidence of the two police officers and the evidence that demonstrated that the photographs which were tendered in evidence had been taken by the bank security cameras during the robbery. Neither police officer suggested that he had any basis for concluding that it was the appellant depicted in the bank photographs other than the knowledge that he had gained of the appellant's physical appearance during earlier encounters and whatever was revealed to a person who looked at the photographs that were produced in evidence.
The details of the earlier encounters are mentioned in the judgment of Kirby J: [27] ‑ [29]. Both police officers had dealt with the appellant in circumstances where the appellant had been seen 'on numerous occasions' and 'interviewed'.
On one occasion the appellant had been arrested and 'seen … over extended periods of time'. One officer said he knew the appellant from three brief (under five‑minute) conversations between January and April 1997 and from seeing him 'in passing' including about three weeks before the offence. The other officer said that he had previously spoken to the appellant on five or six occasions while working and had arrested him a couple of times, on each occasion spending an estimate of two to three hours with the appellant.
The majority noted, at [9], that there was no suggestion that the physical appearance of the appellant had changed materially between the time when the photographs were taken and the time of the trial some thirteen months later, or that the police, by reason of their previous observations of the appellant, were at some advantage in recognizing the person in the photographs. Indeed, the court observed, at [9], that counsel acknowledged that, by the time the evidence had concluded, the jurors had probably spent more time in the presence of the appellant than had the police witnesses before they gave their evidence. Accordingly, the conclusion drawn was that the police witnesses were in no better position to make a comparison between the appellant and the person in the photographs than the juror or, for that matter, some member of the public who had been sitting in court observing the proceedings: at [9].
It was further noted that the police officers' conclusion and the jury conclusion both depended upon combining their observations of the appellant's appearance with their observation of the photographs: at [9]. The court also expressed some reservation as to whether, due to the quality of the photographs, the jury could have compared them with the accused: at [9].
Notwithstanding the determination that evidence of this type was not relevant and should not have been received, the majority made it clear that they were not concluding that it will never be relevant for a witness to give evidence that the witness recognises a person who is depicted in a photograph: at [13]. One example given of relevant evidence of this type was the situation where the facts in issue extend beyond the narrow question whether the accused, as observed at trial, is the person depicted in the photograph: [14]
The court referred to the decision in R v Goodall [1982] VR 33 where the question before the jury included whether the accused owned a jacket of the kind that the offender depicted in the security photographs of a robbery was shown to be wearing. Two police officers gave evidence that they had seen the accused wearing this kind of jacket before the robbery. They gave further evidence that the man who was depicted in the security photograph was the accused. The court observed that the evidence was, therefore, relevant to link the accused to the jacket. It went beyond the bare assertion of recognition of the person on trial as the person shown in the photograph: [14].
In this case, Mrs Bilos in her statement also makes reference to the fact that the accused owned black pants and black dress shoes like those shown in the photographs and also had a number of long sleeved shirts of various colours and styles. However, although that evidence would be admissible to establish consistency between clothing possessed by the accused and those of the person in the photograph, it would not, in my view, fall into that category of evidence referred to in R v Goodall, which even the majority in Smith v The Queen considered to be relevant. Nevertheless, in the reasons of the majority it is made clear that in certain circumstances evidence of recognition of someone from a photograph will constitute relevant and admissible evidence.
The majority of the court in Smith v The Queen went on to identify other cases in which the evidence of identification will be relevant because it goes to an issue about the presence or absence of some identifying feature other than one apparent from observing the accused on trial and the photograph which is said to depict the accused: [15]. One particular example referred to by the majority was the following:
Thus, if it is suggested that the appearance of the accused, at trial, differs in some significant way from the accused's appearance at the time of the offence, evidence from someone who knew how the accused looked at the time of the offence, that the picture depicted the accused as he or she appeared at that time, would not be irrelevant [15].
However, the majority went on to observe that in each of the examples given, further questions of admissibility would then arise and that those questions would very likely include questions about the application of the opinion rule and the questions presented by the general discretion to exclude evidence and discretion to exclude prejudicial evidence under the relevant NSW legislation: [16].
The application of the opinion rule was indeed considered by Kirby J in Smith v The Queen as he had found that it was not possible to determine the appeal on the basis that the evidence of the two police officers was inadmissible as not being relevant, directly or indirectly, to a fact in issue: [41]. In reaching the decision that the evidence was relevant, Kirby J also observed that, in past decisions, it has been observed that such identification evidence may be relevant if the jury require further assistance on the interpretation of photographs; if the appearance of the accused has changed and the witness can testify to the appearance at the time of the offence; or, if the witness has an advantage over the jury based on sufficient familiarity with the accused or other expertise: [41]. Kirby J referred, in particular, to the decisions in R v Goodall and in R v Palmer (1981) 1 NSWLR 209. His Honour also referred to the decision in Stockwell (1993) 97 Cr App R 260 at 263 - 264.
In Stockwell, a video film taken by a security camera recorded a man robbing a building society. Some months later an attempted robbery took place at another building society and was recorded by a security video camera. The appellant was charged with both offences and denied involvement in either crime. At his trial, the trial judge ruled that the evidence of a facial mapping expert could be adduced by the prosecution to assist in determining whether the appellant appeared in both videos. The Court of Appeal held that in cases where identification was in issue and where, as in the instant case, it was suggested that the appellant might have been disguised, there was no reason why expert evidence should not be given, if it could provide the jury with information and assistance. Whilst there is no suggestion in this case that the accused was disguised, the decision in Stockwell is an example of the relevance and admissibility of evidence directed to assisting the jury to understand any difference between the photograph and the accused at the time of trial. In Stockwell, the Lord Chief Justice, reading the judgment of the court, referred at 263 ‑ 264 to an extract from the judgment of Lawton LJ in Turner (1975) 60 Cr App R 80, 83:
Where, for example, there is a clear photograph and no suggestion that the subject has changed his appearance, a jury could usually reach a conclusion without help. Where, as here, however, it is admitted that the appellant had grown a beard shortly before his arrest, and it is suggested further that the robber may have been wearing clear spectacles and a wig for disguise, a comparison of photograph and defendant may not be straightforward. In such circumstances we can see no reason why expert evidence, if it can provide the jury with the information and assistance they would otherwise lack, should not be given
In addressing the issue in Smith v The Queen of whether the evidence of the two police officers was of opinion or of fact, Kirby J noted that the distinction between evidence of a 'fact' and of an 'opinion' is one of degree rather than of kind: [52]. His Honour also accepted that a wide latitude should be accorded to a trial judge as to the applicable classification, given the blurred boundary between fact and opinion: [54]. In the context of this application it is also important to note Kirby J's acceptance of the point made by the Court of Appeal in Smith v The Queen that a statement identifying a person, clearly depicted in a studio photograph, as one's spouse (or partner), close family member or friend, would normally be regarded as a statement of fact, although his Honour noted that the accuracy of such identification may depend upon the quality of the photograph: [55]. Kirby J expressly referred to the distinction between a well‑lit studio portrait and the 'somewhat imperfect representation in a bank security photograph of a scene where the subject of the photography is taking pains to disguise, or hide, his or her appearance': [55].
In determining the appropriate status of the evidence in this case and the application of any discretion to reject the portions of Mrs Bilos' statement dealing with her identification of the accused, it must be noted that the offender in the relevant photographs is not disguised in any way and that there are a number of the photographs which give a clear, unobstructed and well‑lit picture of the face of the offender.
Kirby J referred to the experience of the law of the very great risks of wrongful conviction which can attend identification (and recognition) evidence and to the enhancement of those risks by the natural desire of a person performing the act of identification to produce an affirmative outcome: [56]. His Honour also noted that the risks are still further increased whenever the person concerned has a relevant professional motivation (even if only subconsciously) to identify a person: [56]. Kirby J observed, at [57], that it was 'unsurprising' that identification evidence of the kind offered by the two police officers has normally been classified as opinion rather than factual evidence and, consistent with this trend of authority, concluded that the evidence of identification offered by the police witnesses was opinion evidence: [58].
Turning then to deal with one of the exceptions to the opinion rule, that of specialised knowledge, Kirby J noted that there was no suggestion that the prior contact of the police officers with the appellant amounted to ad hoc expertise based on familiarity: [59]. Nor was the evidence found to fall within any other exception to the rule. Kirby J concluded that the evidence, being of an opinion, was not admissible to prove that the appellant was a participant in the robbery and should be excluded: [61].
Both Kirby J and the majority of the Court in Smith v The Queen referred to the decision in R v Palmer in which the Court of Appeal held that evidence identifying the appellant as the person in bank surveillance photographs was admissible because it confirmed a continuing and current state of mind regarding the identity of the person in the photograph with that of a person with whom the witnesses were familiar: 209.
The court in R v Palmer was dealing with two armed robbery offences which had been committed approximately two months apart. On each of the armed robberies the offenders were photographed by security cameras within the bank's premises. In relation to the first offence, three photographs of a man in a tracksuit with a stocking over his head were tendered and admitted into evidence without objection. The photos also showed a second man involved in the armed robbery.
The Crown called evidence from the wife of the second man. She was shown a photograph and asked if she recognised the man with the stocking over his head. She stated that it looked like the appellant, John Palmer. She was asked if she recognised the person in another photograph and said that it was her husband. She was also asked if she recognised the person behind her husband and she said that it looked like the appellant, John Palmer: 212. On behalf of the appellant, it was submitted in relation to this and to the identification evidence on the second offence, that the evidence was opinion evidence and that it was inadmissible on the basis that the witnesses were not competent to express an opinion regarding the identity of a man with a stocking over his face with a man that they knew: 213. Street J (with whom Lusher J agreed) described the evidence as an important part of the Crown case in that it identified the appellant as one of the two men who carried out the bank robbery. His Honour considered the evidence to be clearly admissible and could see no justifiable basis, either in principle or on authority, for precluding the evidence from being placed before the court: 211, 213.

In the second armed robbery, which took place on 17 November 1978, there were three photographs taken by the security cameras, one of which had been enlarged and a poster had been displayed at banks inviting any person who recognised the man photographed to inform the bank manager. The witness saw the photograph and in due course she and her husband contacted the bank manager. The evidence of the witness was that she recognised the man in the photograph. She had previously seen him at a house across the road from where she lived. She said that she first saw him at approximately the end of October or the first week in November 1978. She saw him there up until the middle of January in the following year. She said that there had been a brief period that she did not see him until she next saw him on 22 February when she noticed a change in his appearance: 211.
The witness's husband also gave evidence. He said that he recognised the person in the poster as the person who had been living directly across the road from him for quite some time. He described his appearance from the later end of October onwards and then described the change in his appearance when he next saw him in February of the following year: 211 ‑ 212.
The third witness was a Mrs Johnson who had been the tenant of the house where the appellant had been said by the previous witnesses to reside during the relevant period. She said that the appellant had been living there towards the end of November 1978 and she had had an intimate relationship with him. She said that he had commenced to live with her in October 1978. She said that at that time he had no moustache nor a beard. She said he changed his appearance when he left her place in January prior to his return in March. When shown the photographs she said that the man in the photo looked like the appellant, the man with whom she had had a relationship: 212.
Counsel for the appellant submitted that the witnesses were deposing by way of an opinion to an ultimate question which it was for the jury to determine: 213. Street CJ considered that submission to have no substance: 213. He described the matter being contested as essentially whether it was proper for a witness to say that a person shown in a photograph was a particular person known to them. His Honour observed that he could see no basis for doubting the admissibility of evidence along those lines: 213E‑F. Street CJ also stated that the witness and her husband were fully competent to give evidence at the trial identifying the man in the photograph as the man who used to live opposite to them: 213C.
The remaining member of the court in R v Palmer, Glass J held, at 214, that he could see no difference in point of principle between the identification evidence tendered and the more usual kind which identifies the person observed at the scene of the crime with a person appearing in a police photograph. His Honour added:
It is accordingly within authority and principle both opinion evidence by persons without expert qualifications and so far as it relates to past recognitions within an exception to the hearsay rule [214].
It can be seen from this analysis of the authorities that evidence of identification of an accused from a photograph, when that identification is made by a witness who is in no better position than the jury to make such an identification, is not relevant and not admissible. However, it is also clear that there are a number of circumstances specifically referred to in the authorities which were clearly stated to lead to a different result. One such circumstance is where the appearance of the accused may have changed between the time when the photograph was taken and the time of trial. In that circumstance, evidence from someone who knows how the accused looked at the time of the offence has been held to be relevant. Another circumstance is where the witness can be said to have an advantage over the jury based on sufficient familiarity with the accused or some specialised knowledge or expertise. In particular, where an offender might be disguised, expert evidence is admissible to provide the jury with information and assistance. Another circumstance is where the evidence goes beyond the bare assertion of recognition of the person on trial as the person shown in the photograph, such as identifying clothing or any other object in the photograph as belonging to the accused.
Indeed, identification by a spouse, partner, close family member or friend of an accused depicted in a good quality photograph is considered to be of such force as to be a statement of fact rather than opinion.
Before referring to the number of propositions said to arise from an application of the reasoning of the majority in Smith v The Queen, counsel for the accused briefly set out a chronology of this matter. It was said that, despite what no doubt was an extensive police investigation, including the advertising and display of the surveillance footage stills collected from the ANZ Bank at the time showing the offender, nobody came forward to admit to or provide information about the offence. The case did not move forward and effectively became a cold case. According to counsel, it remained that way until Mrs Bilos came forward to police officers 10 years after the event with information that the offence had been committed by the accused, her ex‑partner, and that he had confessed to her. Thereafter, further investigations took place and the accused was arrested.
In the course of this chronology, counsel for the accused emphasised that Mrs Bilos did not give a signed statement at the time she came forward. He described this as a 'curious feature'. Counsel noted that Mrs Bilos's statement was not signed until 11 November 2008 after this matter had already been listed for trial for some time and rulings had been made on the admissibility of other identification evidence. Counsel also emphasised that Mrs Bilos was still, albeit in an acrimonious sense, associating with the accused sufficiently to give the evidence that she gives of attempts to concoct an alibi or discussions regarding concocting an alibi.
It was further observed that, from the moment she came forward and gave information, Mrs Bilos was potentially in a position to make an identification because the material on which her identification was based, her knowledge of the accused's involvement in the offence and her relationship with him, was present at all times. Counsel then blurs the distinction between making the identification and providing a written statement reflecting that identification, because counsel for the accused then draws the conclusion that Mrs Bilos was either not asked to, or was asked and declined, to make a statement. He also expressed the view that the important point was that Mrs Bilos does not do what she later did and what one would have thought would have been asked of her immediately. Presumably, this was to make the statement.
I fail to see any significance to the speculation of counsel concerning the timing of Mrs Bilos' written statement. The statement of Detective Senior Sergeant John Edward Hindriksen indicates that he commenced inquiries into the offence in late January 2008 and that on receiving the file and viewing the photographs from the ANZ Bank surveillance cameras he was able to identify the accused as the male person involved in the offence. Mrs Bilos' statement says that in late January 2008 she attended at Mandurah Police Station and spoke with Detective Hindriksen and told him what she knew about the accused doing the robbery on the ANZ Bank. In February 2008 she became aware that the accused had been charged by the police with the robbery. In September 2008 she handed Detective Hindriksen some photos of the accused taken several months after they had met. It was not until 11 November 2008 that Mrs Bilos was shown the series of four photographs of people in a bank and recognised a male person wearing dark pants and a long sleeved shirt as her ex‑husband, the accused.
For myself I can see no relevance or significance to the fact that Mrs Bilos did not immediately make an identification of the accused as the offender or make a statement setting out her knowledge of the accused's involvement in the offence. In particular, I reject any suggestion that counsel's observations are relevant to the admissibility of Mrs Bilos' evidence that the accused is the person in the ANZ Bank surveillance photos.
There may be many reasons for the matters with which counsel for the accused finds complaint and I have no doubt the relevant witnesses will be cross‑examined about the reasons at trial. Counsel for the accused maintained that he was not trying to infer anything inappropriate into the police activities or with respect to Mrs Bilos' evidence. If that be the case, it is difficult to see why these issues were raised at all.
An explanation was in fact given by counsel for the State from the bar table that Mrs Bilos did not want to give a statement because she was fearful of the accused. It was left on the basis that she may co‑operate and she eventually did and volunteered a statement. That explanation, which appears prima facie reasonable will no doubt also be the subject of cross‑examination but in no way affects the determination of the admissibility of Mrs Bilos' evidence.
Counsel also referred to the fact that Mrs Bilos passed to the investigating police officers photographs of the accused when they met but that no such photographs have been exhibited. The first observation that can be made about this matter is that the photographs were not taken at the time Mrs Bilos and the accused met. As I have noted above, the photos were taken several months after they met. Therefore, they are photographs taken of the accused at least six or more months after the offence. In circumstances where counsel for the accused considers evidence of what the accused looked like three months after the offence as being no evidence of what he looked like at the time of the offence, it is difficult to understand counsel's concern that Mrs Bilos' photographs of the accused are not to be put in evidence.
The position taken by counsel for the accused is that the identification evidence is irrelevant. Further, if it is considered to be relevant, it is lay opinion evidence and should not be admitted. Finally, if the evidence is found to be admissible the accused submits that it should be excluded in the exercise of judicial discretion.
Relying on the decision in Smith v The Queen, counsel for the accused referred to a number of propositions said to arise from an application of the reasoning of the majority:
(a)Mrs Bilos, in identifying the accused as the robber from the surveillance photographs is in no better position to make such an identification than the jury. Neither knew nor had met the accused on 4 June 1998. Mrs Bilos' evidence is not identifying the photographs of the accused in circumstances where his identity has been proved through other admissible evidence;
(b)Mrs Bilos is not identifying photographs of the accused in circumstances where his identity has been proved through other admissible evidence;
(c)The purported identification is from material forming the subject matter of the robbery and is therefore prejudicial in addition to being irrelevant;
(d)There is no question of the witness being in a position to assist with item(s) of clothing, shown on a photograph and separately capable of being evidenced as the property of the accused. The witness attempts such an identification in her statement. But this can be dismissed as lacking any specificity and therefore probative value; further, it cannot be shown that the accused owned any such clothing on the date of the robbery;
(e)There is no evidence that the accused and the male identified as the accused in the photographs in question by the witness share any distinguishing or distinctive features which fact might render the witness' evidence relevant and therefore admissible; further, there is no evidence that the accused has changed in appearance significantly since June and that the witness could assist the jury with the detail and timing of such changes. There is simply no evidence on either of the two points above to which the witness directs her evidence and therefore gives admissible identification evidence to the jury;
(f)The material from which the witness purports to identify the accused is comprised of still photographs so there is no question of the witness being able to assist a jury on a distinctive manner of movement.
These matters are said by counsel to reflect the matters the majority felt would press upon the admissibility of such evidence. I will deal with each in turn.
With respect to paragraph (a) I am simply unable to accept the proposition that Mrs Bilos is in no better position than the jury to make an identification of the accused. She is the only person who knows what the accused looked like around the time. Counsel emphasised, and this was the key to his submission, that there is no evidence of what the accused looked like on the date of the offence. In other words, the proposition on which the accused relies is that evidence of what the accused looked like three months after a particular date does not assist in determining what the accused looked like on that particular date. Counsel also submitted that any comments with respect to changes which are likely or unlikely to have taken place over three months was speculation. I do not accept that description. It is, in my view, more a matter of common sense that, in the absence of direct evidence to the contrary, most adults change very little in a short period such as a few months.
Indeed in Smith v The Queen at [9] the court stated there was no suggestion that the physical appearance of the appellant had changed materially between the time of the photographs and the time of trial. Consequently, in the absence of any evidence on the subject, the High Court was prepared to conclude that there was unlikely to have been any material change in appearance in the time frame of 13 months. Clearly, there would be an even lesser likelihood of any change in the three months between when the offence was committed and Mrs Bilos met the accused.
Curiously, in view of his assertion that that evidence of what the accused looked like three months after a particular date does not assist in determining what the accused looked like on that particular date, counsel maintained as a fact that a person's appearance can change considerably in three or four months, and relied on that proposition as a basis for rejecting Mrs Bilos' evidence as identifying the accused at the time of the offence. No impediment was seen to the drawing of an inference about the changes that are reasonably likely to occur over a particular time.
The state contends that, in this case, and unlike the position in Smith v The Queen the time span between the date of the offence and the trial is so great that a jury could not reasonably be expected to make its own assessment and determination of the identity of the person in the photographs from observing the accused at trial. The State submits that this factor makes what is, in effect, the recognition evidence of Mrs Bilos, relevant and admissible. The State maintains this position despite the fact that Mrs Bilos did not commence a relationship with the accused until approximately three months after the date of the offence. The State relies on the proposition that it can reasonably be expected that the accused would look, at the time of the offence, substantially identical to the time Mrs Bilos met him. In this regard, counsel for the State relies on the decision in R v Palmer where the identification of the offender in the bank robbery was made by the wife of an accomplice and by a woman who had been involved in an intimate relationship with the offender.
Having heard the submission of counsel for the State and counsel for the accused, I simply do not accept the proposition that Mrs Bilos was in no better position than the jury to determine what the accused looked like at the relevant time, or that she was in no better position to say how the accused may have changed between how he looked on 4 June 1998 and the day of his trial. The jury have no knowledge whatsoever of how the accused looked any day of the 10 years before they are able to see him in court. Unlike the police officers in Smith v The Queen, Mrs Bilos can add something to the information and knowledge available to the jury about what the accused looked like close to the relevant date. It is a matter for the jury then to determine whether or not there is anything that may have affected the weight of her identification such as some intervening impact on the accused's appearance.
In my view, there is nothing in the decision in Smith v The Queen which would lead to the evidence in question being held to be irrelevant, indeed there is much support to be found for the admissibility of evidence of that type.
With respect to paragraph (b), the proposition relied on is that Mrs Bilos is not identifying photographs of the accused in circumstances where his identify has been proved through other admissible evidence. The scenario where a witness identifies a person in a photograph and the person in the photograph is identified or named by another person, such as occurs with digiboard identifications, was given in Smith v The Queen as an example of a situation where it would be relevant for a witness to give evidence that he or she recognizes the person depicted in the photograph. However, it was not said that, if the identification was not done in that way, the evidence would necessarily be irrelevant and inadmissible. Indeed, as I have noted, there are a number of observations in Smith v The Queen which support the admissibility of the evidence in this case.
In paragraph (c), counsel for the accused refers to the fact that Mrs Bilos' identification is from a photograph of the subject matter of a robbery and is therefore prejudicial in addition to being irrelevant. The majority in Smith v The Queen observed, at [13], that difficulties may arise when the photograph which is used for identification and is tendered in evidence is, as was the case in Smith v The Queen, and also in this case, a photograph taken of an incident which is the subject matter of the proceeding. However, even in such a case, a witness' evidence of recognition of the person depicted may be relevant. However, I note that Kirby J, at [56], expressly stated that he saw no difference in the dangers caused by evidence of identification from photographs of the offender in action, such as produced by bank surveillance, and identification from photographs of the accused and other suspects held by the police.
It is also important to note that, although the decision in Smith v The Queen involved the identification of the accused as a bank robber from still surveillance photographs, it was not that factor which caused the evidence to be ruled inadmissible.
Counsel for the accused drew a distinction between an identification made from a 'neutral' photograph which doesn't show the commission of an offence, and one which depicts an offence taking place. Counsel submitted that evidence of an identification of the latter type is prejudicial. However, it is difficult to see how there arises any greater prejudice than that which invariably arises from evidence implicating the accused in the offence. Evidence of this type does not fall within the same category as digiboard identification where complaint is often made that the digiboard indicates that at some time, and other than in relation to the current matter, the accused has been in contact with the police as evidenced by the fact that the police have his photo. In my view, there is no substance to this criticism of the evidence of Mrs Bilos and it has no impact on the admissibility of that evidence.

It was also submitted on behalf of the accused that by selecting a single individual as opposed to an individual from within a group, Mrs Bilos' evidence has considerably less probative value. The proposition is that on being shown an incriminating photograph, and then picking out the accused as the offender, Mrs Bilos' identification was flawed in that the identification lacked all the safeguards which apply to digiboard identification. There might be some substance to the submission if the witness is a person who was present at the offence and is shown a photo of a person and asked if he was the person who committed the offence. Kirby J identifies the risks of such a process as being the desire of the person performing the act of identification to produce an affirmative outcome rather than to admit to incapacity: [56]. However, that process is of an entirely different type to that which resulted in Mrs Bilos' identification of the accused. She was not present at the time of the offence. She was not being asked if the person in the photograph was the offender. She is simply asked if she recognises the person in the photograph, which she does. That is an entirely different type of identification and has no less probative value and is no more prejudicial because there is only one person in the picture.
Support for this conclusion can be found in the decision in R v Palmer where the court expressed no difficulty with an identification from a photograph of the offence. The court was not concerned about the fact that the identification was of the person who committed the offence because it was done by people who knew him. Counsel for the accused submitted that there is an important difference between the identification in R v Palmer and the instant case, namely that in this case Mrs Bilos was not identifying someone she knew at the time of the photo. The lapse in time was also said to be an important difference. I have already addressed these issues and found them not to have the effect suggested by counsel for the accused. Indeed, it is the lapse of time which makes it necessary to have a witness who can identify the offender at around the time of the offence.
Paragraph (d) refers to of the point the majority made in Smith v The Queen which was that there was no question of the witness being in a position to assist with items of clothing and other identifying features. In this case, the evidence of Mrs Bilos is simply to the effect that the offender in the photograph is her husband and the clothing and shoes being worn by the offender are of the same type as clothing and shoes owned by her husband at the time they first met. The evidence as to the clothing goes only to consistency. Indeed, it is not suggested that the evidence in this case falls within that category of cases identified in Smith v R where the evidence is also of some additional identifying feature. However, it is also clear on the decision in Smith v R and on R v Goodall that the fact that the evidence is not of that type does not necessarily make it irrelevant or otherwise inadmissible.
Paragraph (e) raises two points. The first is that there is no evidence of any identifying features which connect the accused with the person in the photograph. The second point is that there is no evidence that the accused has changed significantly in appearance since the date of the offence. Identification is not always a matter of pointing to distinguishing features. One can simply identify the person from the extensive exposure to the person. In such a case the identification is based on all the person's features, not just specific distinguishing ones. In Smith v The Queen there were no distinguishing features, but neither was there any history of a relationship between the police witnesses and the accused better than that of the jury and the accused. In some respects, an identification might even be less credible if the witness is only focusing on one aspect of the way the person looks. Further, evidence of particular distinguishing features is more likely to become of significance where the witness is in no better position than the jury to identify the person and emphasis is then placed on a particular feature with which the witness is familiar.
The second point, that there is no evidence that the accused has changed significantly in appearance since the date of the offence has already been addressed in these reasons.
The final point raised on behalf of the accused in paragraph (f) is that, because the material from which the identification is made is comprised of still photographs, the witness would be unable to assist a jury on a distinctive manner of movement. This refers to the principle described as the psychology of recognition which maintains that we recognise someone who is familiar, not just by the way they look but by the way they move as well. However, the identifying witness in this case doesn't have the benefit of that because there are only still photographs.
In some cases it may be that a person may not be able to identify someone from a still photograph when they could do so if the person were moving. But that is not the case here. The photos are clear and Mrs Bilos was able to identify the photograph as being a photograph of her ex‑husband. In those circumstances, it matters not that the photographs were stills. In this case, some of the photographs of the offender are clear, full face, almost front on photographs and, in my view, Mrs Bilos' identification of her ex‑husband, the accused, as the person in the photograph is not adversely affected by the fact that she is unable to see him moving at the time.
Counsel for the accused made further submissions based on the rationale adopted by Kirby J in Smith v The Queen:
(a)The witness, despite being the ex‑spouse of the accused, did not know the accused at the time that the photographs in question were taken, or indeed for a number of months afterwards;
(b)The photographs are not the clearest, they are not anywhere approaching a studio style photograph, where a spouse's evidence may be taken as evidence of fact rather than opinion;
(c)In this case, the evidence of the identifying witness is fraught with the clear attendant danger of deliberate or innocent and subconscious misidentification. Kirby J specifies the subconscious motivation of a purely professional witness such as a police officer to make an affirmative identification which may in fact be wrong.
The first of these propositions have already been addressed in these reasons. I do not accept the proposition that the evidence is irrelevant and inadmissible because Mrs Bilos did not know her husband until three months after the offence.
Paragraph (b) raises the issue of the quality of the photograph on which the identification is based. Counsel maintains that Kirby J talks in terms of a family member or a spouse making an identification from a studio style photograph. However, as I have noted above, Kirby J actually makes the following observation: [55].
How much greater is the chance of error in identification where it is done from a photograph and the photograph relied upon is not of a well-lit studio portrait of a close family member or friend
(where testimony might properly be accorded the status of fact rather than opinion, that is of someone you know).
When Kirby J's judgment is read in full and, in particular, the content of [59] where Kirby J emphasises the fact that the prior contact between the police officers and the appellant in Smith v The Queen did not amount to ad hoc expertise based on familiarity which is an exception to the opinion rule, it seems to me that he is really not saying that the evidence is only admissible if the photograph is a portrait style photograph. Certainly the quality of the photograph is a particularly relevant factor when considering the quality of identification evidence but, in my opinion, it would only be where the quality is so poor as to call into question the accuracy of the identification, that identification made by a spouse or family member of an accused would not be admissible.
Counsel for the accused maintained that the photographs are not the clearest or most helpful. The fact is that some of them are very poor. However, even some of the photocopies of the photographs provided to the court are very clear and, in my view, more than adequate for the purposes of the type of identification under consideration in this case. Of the surveillance photos of the offender, I found seven which were of a sufficient quality to be able to identify whether or not the person was a person's partner of over 10 years.
Counsel concedes that the court is entitled to make a value judgment but submits that the different value judgment reached by him identifies the attendant dangers of the identification. In my view, the mere fact that someone expresses a contrary view as to the quality of the photographs does not justify a conclusion that there are any dangers in the identification.
Counsel for the accused further maintained that Mrs Bilos' evidence was lay opinion evidence, as that of the police officers, and should not be admitted. In my view, there is no substance to that proposition. Mrs Bilos identifies the person in the surveillance photographs as her ex‑husband. Providing the quality of the photograph is acceptable, an issue I have already addressed, Mrs Bilos' statement is not one of opinion but fact. Although I accept counsel's submission that it is not necessarily helpful in this regard to be guided by a witness' mode of expression, the import of the evidence is that it is an identification of her husband rather than an assessment made in the context of a poor quality photograph that the person in the photograph does look like her husband. As such, on the reasoning of Kirby J in Smith v The Queen and the Court of Appeal in R v Palmer, the evidence is a statement of fact rather than opinion.
This is clearly the view of counsel for the State who concedes that in Smith v The Queen the conclusion by Kirby J that the evidence of the police officers was opinion evidence was based on reasoning regarding the chance of an error of identification where it is done from a photograph where the photograph is not of a well-lit studio portrait of someone known to the witness, but the somewhat imperfect representation of the bank security photographs of a scene where the subject of the photograph is unknown and may be disguising or hiding his appearance.
Counsel submitted, correctly in my view, that in this case the offender, as shown in the photograph, was not taking any action to disguise or hide his appearance and the photographs are quite clear and of good quality, showing the offender from a variety of angles.
Consequently, it is the submission of the State that the recognition of evidence of Mrs Bilos is relevant and is also factual evidence rather than opinion evidence because of the nature and form of the recognition evidence; namely the period of time the accused and Mrs Bilos were in a relationship including marriage and that the photographs are quite clear in quality with no suggestion that the offender was attempting to disguise himself.
Support for that submission is said to be found in R v Palmer where the majority rules that evidence of recognition or identification by a wife of an accomplice and a woman who had been in an intimate relationship with the offender was admissible, and rejected the submissions made by the appellant that the witnesses were deposing by way of opinion to an ultimate question which was for the jury to decide, but were giving evidence about something they were competent to give evidence about.
In Smith v The Queen the majority [15] and Kirby J [41] acknowledged the relevance of familiarity of the witness with the person in the photograph when considering the admissibility of identification or recognition evidence. In my view, it certainly cannot be said that the jury was in as good a position as Mrs Bilos to determine whether the person in the photographs was the accused.
In this case, the offence occurred on 4 June 1998. Mrs Bilos met the accused approximately three months later. They married on 8 September 2001 and separated in December 2006. On 1 November 2008 when the identification was made, Mrs Bilos had known the accused for just over 10 years. They had lived together for just over eight years and were married for five years. By the time of the trial Mrs Bilos will have known the accused for nearly 11 years. Although she did not know him at the time of the offence, she is a witness who knows what he looked like only a matter of a few months after the offence.
Having considered the material identified in the authorities referred to above, the conclusion I have drawn is that the circumstances of the identification are such that the evidence certainly adds much to an identification made by a juror and hence is relevant. Further, the circumstances allow me to conclude that the identification is evidence of fact rather than lay opinion and is admissible on that basis.
Counsel for the accused further submits that Mrs Bilos' identification evidence should be excluded in the exercise of the judicial discretion. Reference is made to the decision in Alexander v The Queen (1979 ‑ 1980) 145 CLR 395 where Gibbs CJ said (402 ‑ 403):
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 the opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused.
Counsel submits that, in this case, the identification evidence of Mrs Bilos, in conjunction with the confessional evidence and the evidence of the accused and others planning to concoct a false alibi, will clearly be highly prejudicial to the accused. The accused further submits that such prejudice must be unfair when balanced with the limited probative value of the identification evidence when considered in the terms advanced on behalf of the accused.
In this case, support for that proposition is said to be found in the fact that the identifying witness is estranged from, and in an open state of animosity towards, her ex‑partner, the accused. It is further said that, lacking any means to test Mrs Bilos' identification evidence as evidence of fact, the jury will be relying upon the untestable opinion evidence of a witness clearly potentially motivated to make a positive identification and thereby incriminate the accused.
Estranged partners do not fall within a category of witnesses who cannot be believed if their evidence implicates their ex‑partners. The nature of the relationship is a proper basis for cross‑examination, but an assumption that estranged partners with an acrimonious relationship are so likely to lie on oath that their evidence should be excluded would result in removing a potential class of identification witnesses. Sometimes the only person an offender admits his wrongdoing to, and the only person who can identify the offender in various circumstances over time, particularly over a very lengthy time, are ex‑partners. Whilst married, the partner is unlikely to speak to anybody about the admission. It is only when the relationship has gone sour that partners are quite often prepared to come forward. If the submission of counsel were accepted, juries would lose the benefit of a significant body of evidence without being given the opportunity to determine whether or not the witness is telling the truth.
Counsel maintained that he was not suggesting that the evidence of an entire class of witnesses should be excluded. I accept that it is so. However, it is the consequence of the proposition on which counsel for the accused relies, which is effectively that the evidence should be excluded because of the possibility that the negativity in the relationship will lead to a misidentification, deliberate or otherwise.
Counsel then submitted that the submission to exclude the evidence must also be considered in the context of four other identifying witnesses, one of which is a descriptive witness whose evidence does not specifically implicate the accused and another who identifies a different person as the offender. I fail to see how the fact that other witnesses may not be strong witnesses is relevant to the exercise of the judicial discretion to exclude the evidence of Mrs Bilos, particularly where her identification is of an entirely different type.
Finally counsel submits that the evidence of Mrs Bilos is untestable. That is simply not so. There is a great deal of material to work with, including the fact that she failed to come forward immediately and did not immediately make an identification of the accused from the surveillance photographs. In my view, there is no basis to exclude the evidence because of perceived difficulties in cross‑examination
Counsel submitted that the identification evidence of Mrs Bilos, in conjunction with her evidence that the accused admitted to committing the offence and of the discussion about concocting an alibi, would be highly prejudicial. However, in my view, it is only prejudicial in the appropriate sense of being evidence that clearly implicates the accused in the offence. In any event, the jury will receive a clear warning of how to deal with the identification evidence in the particular factual context in which it has come to light.
The State contends that the recognition evidence of Mrs Bilos should not be excluded on discretionary grounds as the probative value of the evidence is not limited but is of high probative value considered in the circumstances of the time span between the date of the offence and the trial date, and any prejudice to the accused by the reception of such evidence can be overcome by an appropriate direction to the jury by the trial judge.
The conclusion I have drawn is that the identification evidence of Mrs Bilos is highly probative and only prejudicial in the way that is all evidence that implicates an accused in the offence. I would decline to exclude the evidence in the exercise of my discretion.
I would dismiss the application which challenges the admissibility of the identification evidence.