The State of Western Australia v Colbung
[2012] WASC 354
•5 SEPTEMBER 2012
THE STATE OF WESTERN AUSTRALIA -v- COLBUNG [2012] WASC 354
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 354 | |
| Case No: | INS:104/2012 | 4 & 5 SEPTEMBER 2012 | |
| Coram: | SIMMONDS J | 5/09/12 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Evidence not inadmissible | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA MICHAEL TROY COLBUNG |
Catchwords: | Criminal law and procedure Section 98(2)(a) Criminal Procedure Act 2004 (WA) Admissibility of evidence relevant to upcoming trial Whether photographic identification evidence and resemblance evidence admissible Rogues' gallery effect and transference and displacement effects Whether prejudicial effect exceeds probative value |
Legislation: | Criminal Procedure Act 2004 (WA), s 98(2)(a) |
Case References: | Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395 Mills v The State of Western Australia [2008] WASCA 219 Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159 Yarran v The Queen [2001] WASCA 52 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Prosecution
AND
MICHAEL TROY COLBUNG
Defence
Catchwords:
Criminal law and procedure - Section 98(2)(a) Criminal Procedure Act 2004 (WA) - Admissibility of evidence relevant to upcoming trial - Whether photographic identification evidence and resemblance evidence admissible - Rogues' gallery effect and transference and displacement effects - Whether prejudicial effect exceeds probative value
Legislation:
Criminal Procedure Act 2004 (WA), s 98(2)(a)
Result:
Evidence not inadmissible
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Category: B
Representation:
Counsel:
Prosecution : Ms B J Lonsdale
Defence : Mr I D Hope
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Defence : Ian Hope
Case(s) referred to in judgment(s):
Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395
Mills v The State of Western Australia [2008] WASCA 219
Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159
Yarran v The Queen [2001] WASCA 52
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- SIMMONDS J:
(This judgment was delivered extemporaneously on 5 September 2012 and has been edited from the transcript.)
Introduction
1 This hearing follows the hearing yesterday in the nature of a voir dire in this matter. It is the decision on an application by the defence for determinations under Criminal Procedure Act 2004 (WA) s 98(2)(a) on questions of admissibility of two matters of evidence in an upcoming criminal trial.
2 I should immediately indicate, as these remarks are likely to be fairly lengthy, what the conclusion is. I have determined that I would not uphold the objection to admissibility. To put the matter in another way, I would rule in favour of the admissibility of the two matters of evidence.
3 I proceed in these introductory remarks by noting that the trial is an indictment with four counts, one of aggravated burglary, one of aggravated armed robbery and two of stealing.
4 All four counts arose out of a single incident at the home of the complainant. I begin by describing that incident and some subsequent events in enough detail to permit me to describe the four counts or offences sufficiently for my purposes.
5 I then describe the matters of evidence to which objections are taken, in terms of evidence adduced at the voir dire and other matters of an evidentiary kind relied upon before me, together with the grounds of the objections.
6 I go on to describe the applicable law and at the same time to apply it to the matters of evidence in question. The final section of these reasons is my conclusion.
The incident in question
7 This description or account is taken principally from the statement of material facts for each of the offences, with some supplementation from evidence given formally in the voir dire and in witness statements and the prosecution brief.
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8 This description, of course, represents matters which may or may not require proof at trial and may be the case as properly tried. The account is only in such detail as I consider sufficient for my purposes.
9 On Sunday, 8 January 2012 in the early hours of the morning at about 2.06 am, the complainant, Brent Dunn, awakened from sleep in the bedroom of the house in Success he shared with Claire Gilbert. Claire Gilbert was with him at the time. He observed a male walking down the side of the house and yelled out at that male. Shortly thereafter he heard the front door of the house being kicked in and he observed two men standing inside the house at the front entrance.
10 One of the two men confronted Dunn with a knife, while the other went into the bedroom. The second male had a screwdriver in one hand and a knife in the other. It is alleged that the second male was the accused. The accused rummaged through the bedroom and took a handbag belonging to Gilbert as well as a wallet, an iPhone and keys belonging to Dunn. Those keys included ones to a Holden Commodore utility (the utility) parked in the driveway of the house.
11 The accused left the house heading towards the utility and the other person followed. Dunn then heard the utility being started and saw the two men drive it away. Dunn observed lying in the back of the utility Dunn's red Yamaha off-road motorcycle (the motorcycle) that bore the racing number 789. That motorcycle had previously been in the garage of the house behind the garage door.
12 I note that Gilbert was sheltering in an ensuite area throughout most of these events.
13 Later on 8 January 2012, in the afternoon of that day, two police officers in a police motor vehicle observed a male at various stages riding or getting off and on a red Yamaha off-road motorcycle observed during these incidents to bear the number 789.
14 One of the police officers, First Class Constable Matthew Jeremy Williams, at at least one of these stages identified the male as a person who looked very similar to an image or images he had seen of the accused, or so he thought. Officer Williams had located these images in the police computer system prior to these events.
15 The two officers were involved in a pursuit of the motorcycle at the end of which they lost sight of it and the male rider. Shortly after the pursuit had ended and sight of the male and the motorcycle had been lost,
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- Officer Williams went to a police station and inspected an image of the accused on the police computer system. He thereby confirmed his identification.
16 On 3 February 2012 the accused was arrested on the present charges.
The counts on the indictment
17 The four counts on the indictment are as follows.
18 Count 1 is of, at Success, aggravated home burglary contrary to the Criminal Code (WA) (the Code) s 401(1). The circumstances of aggravation are being armed, being in company and immediately before the commission of the offence, the accused knew, or ought to have known, that another person was in the place.
19 Count 2 is of, at Success, aggravated armed robbery contrary to the Code s 392. The circumstances of aggravation are being in company.
20 Count 3 is of, at Success, stealing the utility contrary to the Code s 398, read with s 371A.
21 Count 4 is of, at Success and elsewhere, stealing the motorcycle contrary to the Code s 378 read with s 371A.
22 The trial on this indictment is listed before me and a jury for four days to commence on 29 October 2012. That circumstance, of course, means that any publication of the present reasons would be suppressed until the completion of the trial, or further order.
Matters of evidence the subject of the application
23 I turn then to matters of evidence the subject of the application.
24 There are two matters of evidence, the subject of the application by way of objection by the defence, on which I am asked to make determinations.
25 One matter of evidence is the evidence of identification on 12 January 2012 of an image of the accused on a digiboard by Dunn. That identification is as a person involved in the incident. I call this evidence 'the digiboard identification evidence of Dunn', although I will note the defence submission as to the appropriateness of describing the process as a digiboard identification.
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26 The other matter of evidence is evidence of Officer Williams that I have already described, of his identification of the male riding on a red Yamaha off-road motorcycle of the description indicated. I call this evidence 'the resemblance evidence of Officer Williams'.
27 I have reviewed the prosecution brief, and have concluded, as appeared to be common ground before me, that the principal issue in the upcoming trial is the identification of the male in the bedroom, and the male on the motorcycle seen by Officer Williams, as the accused.
28 In that regard, it was not in contest, it seemed to me, that the digiboard identification evidence of Dunn, if accepted at face value, was relevant to the first matter, the identification of the male in the bedroom, while the resemblance evidence of Officer Williams, again if accepted at face value, is relevant to both that matter and the identification of the male on the motorcycle seen by Officer Williams as the accused.
29 In that last respect, the identification of the male on the motorcycle, as seen by Officer Williams, I came to understand the prosecution case as to theft of the motorcycle as that the theft was represented both by the taking of the motorcycle from the house at Success for the purposes of using the motorcycle, (see the Code s 371A(1)(b)), and its subsequent use on the afternoon of 8 January 2012 (see the Code s 371A(1)(c)).
Evidence adduced at the voir dire and matters of an evidentiary kind relied on
30 The prosecution called three witnesses, Officer Williams, a Ms Gamalat Nabhan and a Detective First Class Constable Henrik Munkholm Wulff.
31 Ms Nabhan is a public servant employed in the Forensic Imaging Unit of the Forensic Division of the Western Australian Police Service. She compiled the digiboard, the subject of the digiboard identification evidence of Dunn. I call that digiboard 'the digiboard'.
32 Officer Wulff was the investigating officer for the offences in this case and the person who requested Ms Nabhan prepare the digiboard.
33 Both prosecution and defence were content for me to draw on the contents of the prosecution brief, at least to the extent either counsel addressed me on such contents without objection from the other. Counsel for the defence, without objection from the prosecution, also invited me to observe the height and build of the accused and compare these with the
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- description of the height and build of the male in the bedroom given by Dunn in his first witness statement in the prosecution brief, that of 8 January 2012.
34 The prosecution also tendered into evidence certain documentary exhibits including photographs of the accused and the DVD of the digiboard identification by Dunn. The defence did not call any witnesses or adduce any other evidence.
The grounds of objection
35 As to both the digiboard identification evidence of Dunn, and the resemblance evidence of Officer Williams, the defence case was that I should rule the evidence inadmissible, as I understand it, in the exercise of my 'discretion', either to exclude relevant and otherwise admissible evidence on the basis that its prejudicial effect exceeds its probative value; or my discretion to reject evidence if the strict rules of admissibility would operate unfairly against the accused in the sense that the trial with that evidence would be unfair.
36 On these 'discretions' generally, see Cross on Evidence (8th Aust ed, 2010) [11125]; and on their potential relevance in relation to evidence of the sorts objected to here, see [1340].
37 It was not in contest, as I understood the cases for the parties, that I might so rule. It was not contended that the considerations relevant to the exercise of either discretion were in this case other than an assessment of the potential prejudicial effect on the accused of the admission of the evidence against which suitable directions might not, or might not readily, be drawn, and an assessment of the probative value, if any, of the evidence objected to.
38 The defence submission was that I should rule the digiboard identification evidence of Dunn inadmissible in the exercise of either discretion on the basis that the digiboard was seriously defective, while other evidence of Dunn relative to identification was particularly weak.
39 As to the defectiveness of the digiboard, the defence lay emphasis on what was accepted as common ground, that unknown to Ms Nabhan and to Officer Wulff at the time Dunn made his identification from the digiboard, it contained not one, but two images of the accused, one taken 20 June 2010 (image no 2) and one taken on 1 November 2007 (image no 3). These two were among the total of 12 images on the digiboard.
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- Dunn selected image no 2. He made no reference to image no 3 or any other image on the digiboard.
40 It was common ground that the increase in the chances of a random selection of an image of the accused was thereby at least a doubling, from one in 12 to two in 12. See the description of digiboards in Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159 [31] - [35].
41 However, in this case, there was a further consideration which I understood was advanced as one of a further increase in the chances of selection of either image no 2 or perhaps image no 3. That consideration was other images on the digiboard.
42 It was the evidence of Ms Nabhan that she did not avail herself of any capability afforded in the construction of digiboards to adjust the images, such as the hue of the skin of the fillers, that is, images of persons other than the accused, or the background light for the images, so as to increase the similarities between the fillers and the image or images of the accused. It was common ground there was a capability afforded in the construction of digiboards to make such adjustments: see Winmar [32].
43 Further, there were particular weaknesses in the evidence of Dunn relative to identification. The description of the accused in Dunn's first witness statement, which, like his second, was made prior to his selection of image no 2 from the digiboard, as of a person much shorter and less substantially built than the accused as he presented himself in the court.
44 The prosecution did not take issue with this, at least in any detail, except to the extent that Dunn's own height, which was described in terms of greater than six feet, was emphasised.
45 Further, the first witness statement of Dunn tended to indicate (see witness statement of 8 January 2012, particularly [22]) that the face of the accused was obscured by the hood to the jacket he was wearing.
46 The defence submission was that I should rule the resemblance evidence of Officer Williams was inadmissible in the exercise of either discretion on the basis that it was inherently weak.
47 Further, there were indications that Officer Williams may have been influenced by a prior consideration of images of the accused as a person of interest in relation to the offences here, and had been confirmed in this by his subsequent inspection of an image of him, to arrive too readily at
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- the conclusion he did as to the male on the red Yamaha off-road motorcycle.
48 The resemblance evidence of Officer Williams was inherently weak as it was not based on a prior exposure to the accused. Officer Williams testified he had never seen the accused in person prior to seeing the male on a red Yamaha off-road motorcycle.
49 Rather, the resemblance evidence of Officer Williams was based on his having seen an image or images of the accused on the police computer system on several occasions, beginning with his first access of the system for the accused on 27 April 2009 through to 16 October 2011 and, after having seen the male on the motorcycle on the afternoon of 8 January 2012, gone back to a police station, where Officer Williams had accessed the system for the accused again on 8 January 2012 at, as I understood it, 3.12 pm.
50 Further, Officer Williams' evidence at the voir dire supplied indications, not in his witness statement in the prosecution brief, that he thought he had recognised the male on that motorcycle as the person in the images he had previously inspected while pursuing that male on that motorcycle prior to that last access, while the terms of his evidence before me indicated a greater degree of resemblance between the two than his witness statement had described.
51 In addition, both his evidence and the witness statement indicated that the opportunity to observe the face of the male on the motorcycle was brief, while his evidence as to the clothing of the male on the motorcycle was weak in the witness statement, while stronger in his evidence, but in both cases lacking in detail.
52 The indications that Officer Williams may have been influenced by a prior view of the accused as a person of interest to arrive at the conclusion he did lay in large part in the circumstances at which he came to the area where he first saw the male on the motorcycle.
53 Those circumstances were that previously he had been called by police communications with his partner to the place where the utility as a vehicle involved in the incident in question was abandoned.
54 That place was near the address at which the accused had been known to Officer Williams to live. Officer Williams had thought the accused might be involved and so went from the location of the utility to that address or at least included it in his patrol.
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55 This, it was said, predisposed Officer Williams to find a resemblance between the image or images of the accused he had seen and the male on the motorcycle.
56 In that context it was notable he still felt the need to access entry for the accused on the police computer system afterwards. It was notable as indicating Officer Williams felt the need to check his conclusions from the same source. This might be seen to have the effect of reinforcing a predisposition to conclude as he did with respect to the male on the motorcycle and the person whose image or images he had previously viewed and subsequently viewed in the police computer system.
57 I consider that these grounds go to why I should consider both kinds of evidence objected to to have limited or no probative value and to give rise to a risk or, indeed, certainty of prejudicial effect on the defence.
58 I note that, in addition, at the commencement of the hearing before me counsel for the defence also rested his case against the resemblance evidence of Officer Williams heavily on a further factor. That factor was, in effect, that the evidence was 'remote' evidence of what I understood to be a circumstantial kind only as to the identity of the person involved in the incident in question, being a sighting some hours after it. This made the evidence of more limited value than direct evidence.
59 I do not consider this aspect further as it does not, in my view, add significantly to the other parts of the defence case. That is because there is no doubt identification evidence may be of a circumstantial kind. See the authorities referred to in Yarran v The Queen [2001] WASCA 52 [26] - [28] (Wallwork J, Pidgeon & Murray JJ agreeing). The separation of the circumstances, the subject of the resemblance evidence of Officer Williams, from the incident in question was, in my view, relatively short while they were of a highly suggestive character by reference to the description of the motorcycle involved. Further, the resemblance evidence of Officer Williams was direct evidence as to stealing by use of the motorcycle.
60 I turn now to the law relevant to the present application and the application of that law.
Relevant law and its application
61 As to the digiboard identification evidence of Dunn, the research of counsel produced two authorities, Yarran and Mills v The State of Western Australia [2008] WASCA 219, an authority which referred to
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- Yarran. In both authorities there was photographic identification evidence in which an image of the accused was selected from a collection of 12 which included both that image of the accused and another.
62 So far as I can tell, Yarran involved a photoboard which may or may not have been a digiboard produced by the process with the capability referred to in Winmar [32] above; while Mills did involve such a digiboard.
63 In neither case, however, did any member of the court indicate a concern with the acceptance in the court below - in Mills following a voir dire (there is no indication in Yarran of a voir dire) - of the evidence as admissible. To the contrary, in Mills, I note the reasons of Buss JA [67]:
The appellant's counsel conceded (correctly, in my opinion) that the presence of two photographs of an accused on a photoboard does not, of itself, render identification or recognition evidence in relation to that photoboard inadmissible. See Yarran v The State of Western Australia [2001] WASCA 52 [7], [12], [32], [35] (Wallwork J, Pidgeon and Murray JJ agreeing).
64 I consider, notwithstanding a submission by counsel for the defence to the contrary, that the remarks of the only other member of the court in Mills to deal with the point in such detail to be to the same effect. See Murray AJA [131]:
The police asked Mr Rock to participate in a photoboard identification process to see if he could identify any person who offended against him. From one digiboard he picked Jajko. When shown digiboard 1637, upon which there were two photographs of the appellant, he picked one and said there was another photograph (without identifying which) which looked a lot like the appellant. Certainly the evidence was admissible, but the inherent weakness of photographic identification should have been referred to by the judge, as it was by Mr Rock himself. In addition, the selection of one photograph of the appellant was immensely weakened as an act of identification by the failure also to select the other. In my respectful opinion, Jenkins J, who dealt with the question of admissibility on the voir dire, was right about that.
65 I accept that the admissibility of photographic identification evidence in both cases appears not to have been in issue and that the views of Buss JA and Murray AJA just referred to should thus be seen as obiter.
66 However, I consider the views to be clearly expressed and ones I should not lightly depart from. In view of Winmar [52] on the minimum number of fillers in a digiboard which I reach below, and the fact that
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- Buss JA was a member of the court in Winmar, I consider that constraint even more clearly applies here.
67 I do not consider I have been provided with a reason to depart from the views I have identified with Mills. Further, I note from Yarran and Mills that members of both courts who addressed the point referred to the warnings which were described as adequate in respect of the two images: Yarran [35]; or which ought to have been given in that respect: Mills [131] (Murray AJA); or which it was unnecessary to give in light of other directions given: Mills [97] (Buss JA).
68 I consider that, on the basis of those paragraphs, the matter would indeed appear to be one requiring special judicial directions, so far as I can presently tell.
69 However, the defence case was that the matter of the digiboard identification evidence of Dunn went beyond simply the presence of two photographs of an accused on a digiboard. Indeed, those matters, it was submitted, engaged the concerns or some of them from Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395 which the court in Winmar indicated the digiboard process addressed.
70 Those concerns, it was put to me, Alexander indicated were ones for which there were empirical grounds for believing only a suitable identification parade would meet. In effect, what was involved in the digiboard identification evidence of Dunn was not a digiboard process within Winmar by reason of that engagement.
71 Those concerns from Alexander engaged here were that of the choice of other images than no 2 here, including but not limited to image no 3 as I have indicated, and a failure to adjust the images, which had the effect of increasing to that extent the chance of selection of the accused.
72 I took this as a reference to the concern from Alexander referred to in Winmar [51] - [52]. However, I do not consider that a failure to select or adjust images of the sort to which my attention was drawn here, or which I have been able to discern from the digiboard, is sufficient to render the digiboard identification evidence of Dunn inadmissible.
73 That failure did not, in my view, suggest that one person was more likely to be the offender as opposed to making the chances of random selection of the accused higher. True it is that Winmar notes it is generally accepted some minimum number of fillers is necessary for a satisfactory identification process: see [52]. But it was not made apparent
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- to me that the minimum number requirement, if there is one in such terms, was not met here.
74 In particular, allowing for image no 3 as the defence would have me do, I have not been shown this. The matter of increasing the chances of selection of the accused by the choice of other images than image no 2 including but not limited to image no 3 is a matter, as I have said, to which it would be appropriate for a judicial warning to draw the jury's attention as below.
75 I particularly note image no 9 and image no 1 which it appears to me are distinguishable from the others. However, neither, in my view, shows me that the digiboard's compilation worked a reduction as I have described, given the similarities between image no 9 and image no 1 and the other images in the digiboard. The matter, it seems to me, is peculiarly one for assessment by the jury.
76 I should note that the fact of possible deficiencies in the identification capability of Dunn to which, as I understood it, the defence drew my attention, are not, at least where the discrepancy between the description he gave and the person the subject of the image he selected are of the character involved here, being the height and build referred to, as opposed, say, to the age difference referred to in Winmar [68], sufficient, in my view, alone or in combination with the character of the digiboard here, to render the digiboard evidence of Dunn inadmissible: see Winmar [64] - [70].
77 Indeed, the discrepancies referred to may not, in the circumstances of a case like this one, be appropriate subjects of a judicial warning: [70]. The matter, of course, it seems to me, would depend on the way in which any trial unfolded.
78 I should note, in respect of the identification capability of Dunn, the defence submission that account should also be taken of the failure of Dunn to refer to image no 3 in the digiboard process. This is a contrast with the circumstances described in Mills most clearly [48], item (g), in the judgment of Buss JA.
79 However, Buss JA does not attribute any significance to this in relation to admissibility, and in this case, given the differences between image no 3, the significantly earlier image of the accused, and image no 2, one more proximate to the incident in question that I have noted, I am not convinced the failure to refer to image no 3 would have a significant bearing on admissibility.
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80 The matter of whether an appropriate special judicial warning is called for (see Winmar [21] - [22]) is distinct, on which I am at this point unable to arrive at even a preliminary view.
81 Turning to the resemblance evidence of Officer Williams, no particular authority was referred to in that connection. However, I was referred to what I understood was a combination of the rogues' gallery effect, and transference and displacement effects with, by implication, the authorities on them.
82 I so understand those submissions of defence counsel as concerning the predisposition of Officer Williams to identify a close resemblance between the male on the motorcycle and the image or images he had previously seen, and the image he looked at afterwards. On those effects see Winmar [43] - [44]; and on transference and displacement effects see Mills [132] (Murray AJA).
83 In terms of those effects, Officer Williams had made the initial identification he had from an image of the accused in the police computer system, and confirmed that initial identification by return to that system, against the backdrop of his prior consideration of the accused as a person of interest.
84 I put aside limitations on Officer Williams' capacity to identify the male on the motorcycle in the circumstances that he was presented with in relation to that motorcycle. I consider it was not shown to me that they were sufficient to deprive his evidence of any probative value, nor is it clear to me that they should be the subject of a special judicial warning: see Winmar [22] and cf Winmar [70].
85 The same is my view of the differences - to which defence counsel drew my attention, and to which I have previously referred - between the terms of Officer Williams' witness statement and his evidence before me.
86 As to the rogues' gallery transference and displacement effects, it seems to me, on the authorities of Winmar and Mills, that those possible effects could and should be the subject of a suitable warning or of suitable warnings, and are not sufficient to render the resemblance evidence of Officer Williams inadmissible: see Winmar [72] - [73] and Mills [132].
87 It was suggested to me that there was a special potential for prejudice which arose from the fact that Officer Williams was a police officer and might be seen by the jury on that account, or in combination with his
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- personal manner in the presentation of evidence, to be a person presenting particularly credible evidence.
88 I consider that this does not alter my conclusion. It seems to me that it is for the jury to evaluate those matters, nor do they appear to me to call for special judicial direction. They appear to me to be ones peculiarly within the province of the fact finder in this matter.
89 However, I note, as counsel for the prosecution did, that the reason why the images of the accused in the police computer system had been inspected by Officer Williams previously to the incident had the clear potential to represent inadmissible evidence by reference to the discretions. That was because of the possible suggestion that they might make of a previous criminal history of the offender. I do not, by so saying, indicate that I would necessarily so rule, but simply note the potential.
90 This, of course, has implications for how the evidence of Officer Williams is to be drawn out at trial. I do not believe I need to say anything further about the matter than that.
91 I turn to my conclusion.
My conclusion
92 It follows from this analysis that I would not rule either the digiboard identification evidence of Dunn or the resemblance evidence of Officer Williams to be inadmissible in exercise of either of the discretions referred to. However, I note, as I have above, that for certain matters, as I have indicated, special judicial warnings would, on present indications, appear to be necessary.
93 I should add that so far as I am able to tell, the prosecution appears to agree that such warnings would, on present indications, be appropriate.
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