The State of Western Australia v Dixon
[2015] WASC 4
•6 JANUARY 2015
THE STATE OF WESTERN AUSTRALIA -v- DIXON [2015] WASC 4
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 4 | |
| Case No: | INS:231/2013 | 5 NOVEMBER 2014 | |
| Coram: | CORBOY J | 6/01/15 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Application to exclude evidence refused | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA PHILIP AUBREY DIXON RODNEY JAMES KENNEDY |
Catchwords: | Criminal law Evidence Identification evidence Whether evidence ought to be excluded as prejudicial or as being unfair to the accused |
Legislation: | Nil |
Case References: | Davies v The King [1937] HCA 27 Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395 Domican v The Queen (1992) 173 CLR 555 Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 Kelly v The Queen [2002] WASCA 134; (2002) 129 A Crim R 363 R v Bouquet [1962] SR (NSW) 563 R v Story [2004] SASC 32; (2004) 144 A Crim R 370 Roser v The Queen [2001] WASCA 190; (2001) 24 WAR 254 The Queen v Hallam and Karger (1985) 42 SASR 126 Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Prosecution
AND
PHILIP AUBREY DIXON
First-named Accused
RODNEY JAMES KENNEDY
Second-named Accused
Catchwords:
Criminal law - Evidence - Identification evidence - Whether evidence ought to be excluded as prejudicial or as being unfair to the accused
Legislation:
Nil
Result:
Application to exclude evidence refused
Category: B
Representation:
Counsel:
Prosecution : Ms M Mattocks
First-named Accused : Mr R Owen
Second-named Accused : Ms M Barone
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
First-named Accused : Aboriginal Legal Service (WA)
Second-named Accused : Barone Criminal Lawyers
Case(s) referred to in judgment(s):
Davies v The King [1937] HCA 27
Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395
Domican v The Queen (1992) 173 CLR 555
Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
Kelly v The Queen [2002] WASCA 134; (2002) 129 A Crim R 363
R v Bouquet [1962] SR (NSW) 563
R v Story [2004] SASC 32; (2004) 144 A Crim R 370
Roser v The Queen [2001] WASCA 190; (2001) 24 WAR 254
The Queen v Hallam and Karger (1985) 42 SASR 126
Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159
- CORBOY J:
The application and the result
1 Rodney James Kennedy and Philip Aubrey Dixon have been jointly charged on an indictment containing six counts. Count 1 of the indictment alleges that on 24 August 2013 at Port Hedland, Mr Kennedy and Mr Dixon stole from Jason Ross Ormerod, with actual violence, money the property of Mr Ormerod. It is further alleged that Mr Kennedy and Mr Dixon were armed with an offensive instrument, namely a beer bottle; that they were in company with each other and that they did bodily harm to Mr Ormerod.
2 The prosecution brief includes a statement signed by Mr Ormerod on 25 August 2013. Mr Dixon and Mr Kennedy have applied, under s 98 of the Criminal Procedure Act 2004 (WA), for an order excluding part of Mr Ormerod's statement concerning an identification that he purportedly made of the accused as his assailants. It was contended that the prejudicial effect of the proposed evidence outweighed its probative value and/or it would be unfair to allow the evidence to be presented in the trial.
3 I have concluded that the applications should be refused and that the State should be permitted to lead evidence from Mr Ormerod concerning his identification of Mr Kennedy and Mr Dixon as the persons who had allegedly robbed him.
Statement of material facts
4 The statement of material facts alleges that Mr Ormerod attended the North West Music Festival at the Port Hedland Turf Club on Saturday 24 August 2013. He left the festival venue at about 10 pm and commenced walking down McGregor Street. It is alleged that Mr Kennedy and Mr Dixon were walking in the opposite direction and, as they passed Mr Ormerod, Mr Kennedy grabbed Mr Ormerod's shoulder and demanded that he hand over his wallet. Mr Ormerod refused and was then assaulted by Mr Kennedy hitting him in the face with a beer bottle. Mr Ormerod was knocked to the ground, was further threatened and handed $400 to Mr Kennedy. Mr Dixon then demanded that Mr Ormerod hand over his wallet; Mr Ormerod stated that he had no money left and Mr Dixon and Mr Kennedy then walked away.
Mr Ormerod's statement
5 Mr Ormerod stated that he went to the North West Festival at around 2.30 pm. He had about $1,500 in his wallet. He was drinking throughout the afternoon and evening but did not consider that he was drunk. He left the festival at approximately 9.40 pm and commenced walking down McGregor Street. He saw two males walking towards him. He described both males as Aboriginal, with a male that he referred to as 'Male 1' being 'of slim build, with short dark hair'. Male 1 was wearing a black shirt and a black backpack.
6 Mr Ormerod described the second male as also being of slim build, 'in his late twenties and taller than Male 1'. He stated that this person, who he referred to as 'Male 2', was wearing a red hat and a singlet that he thought was black and red in colour.
7 Mr Ormerod stated that he felt Male 1 grab hold of his right shoulder as the two males passed him. He turned to face Male 1, who demanded that Mr Ormerod hand over his wallet. Various threats were made, with Mr Ormerod stating that he had no money. He was standing face-to-face with Male 1, who was holding Mr Ormerod with his left hand. Male 1 then swung his right hand at Mr Ormerod, hitting him in the face with a bottle. Mr Ormerod was knocked to the ground and while on the ground Male 1 stood over the top of him and again demanded his wallet. He handed over some money to Male 1, who started to walk away. Male 2 then stood over Mr Ormerod and demanded his wallet. Mr Ormerod replied by stating that he had given all of his money to Male 1. Male 2 walked away.
8 Mr Ormerod dialled '000', spoke to an operator and was then connected to the police. While he was speaking to a police operator, he saw police officers outside a nearby shopping centre. He approached one of the officers, Constable Boyle. He told her that he had been bashed with a bottle and $400 had been taken. Constable Boyle told him to get into a police vehicle. The vehicle was then driven by Constable Boyle and Constable Cruz-Parker back towards the Festival entrance/exit - that is, in the direction that Male 1 and Male 2 had taken after Mr Ormerod had been robbed. Mr Ormerod then stated:
70. As we were driving I told the police that the two guys who robbed me were Aboriginal and one of them had a back pack.
71. As we got close to the entrance of the turf club I could see lots of people coming out of the festival.
72. On the left-hand side of the road I could see about four or five guys in orange shirts standing on the footpath.
73. The guys in the orange hi vis work for A1.
74. A1 are a traffic management company.
75. There were some other people standing with them.
76. Constable Boyle said, 'Is that him?'
77. I looked and saw male 1, he was still wearing the back pack.
78. I also saw male 2. They were surrounded by the guys in the orange shirts.
79. Constable Boyle stopped the car and both her and Constable Cruz-Parker got out of the car and ran towards the group of people.
80. I couldn't get out of the car because it was locked, but I could see out the window.
81. I saw Constable Cruz-Parker grab male 1, she jumped on him.
82. Constable Boyle grabbed hold of male 2 as he tried to run away from her.
9 Mr Ormerod described a struggle between Constable Boyle and Male 2 and the assistance provided by some of the traffic attendants. He further stated:
89. Constable Boyle came and let me out of the car.
90. I saw both male 1 and male 2 on the ground in handcuffs.
91. They were the two male people who had robbed me.
Other relevant statements
10 Constable Cruz-Parker made a statement, dated 28 October 2013, in which she said that she and Constable Boyle were outside the Boulevard Shopping Centre, Port Hedland, at approximately 10 pm when they were approached by Mr Ormerod. He stated that he had been assaulted with a bottle by two Aboriginal men who had stolen $400 from him. He said that his assailants were still on McGregor Street, outside the Festival.
11 Constable Boyle and Constable Cruz-Parker requested Mr Ormerod accompany them in their police vehicle while they attempted to locate the two men who had allegedly robbed Mr Ormerod. According to Constable Cruz-Parker, Mr Ormerod provided a description of the two men as they drove down McGregor Street:
11. Ormerod told me one male was Aboriginal wearing a red coloured jacket and a hat.
12. He told me the other male was also Aboriginal wearing dark clothing carrying a back pack.
12 Constable Cruz-Parker stated that she observed a large group of people on the left-hand side of the road standing on a grassed area as they approached the main entrance to the Festival. She observed an Aboriginal man wearing dark clothing and carrying a dark backpack on the grassed area. Mr Ormerod then informed Constable Boyle and Constable Cruz-Parker that this person was one of the men who had robbed him. The police officers left their vehicle and Constable Cruz-Parker placed Mr Kennedy under arrest. She observed Constable Boyle take hold of another Aboriginal man who was standing next to Mr Kennedy. That person was wearing a red coloured jacket and a hat. The person was Mr Dixon.
13 Constable Boyle made a statement dated 24 October 2013. She provided a similar account to Constable Cruz-Parker about being approached by Mr Ormerod while outside the Boulevard Shopping Centre. She said that she had instructed Mr Ormerod to get into the police vehicle and told him that they would attempt to locate the people who had robbed him. She asked Mr Ormerod to give a description of the people who had allegedly committed the robbery. However, she did not state what she was told by Mr Ormerod in response to that request. Rather, she stated that:
19. As we approached the entrance of the turf club I observed a group of people standing on the left side of the road.
…
21. I could see people I recognised as A1 Traffic Management workers wearing hi visibility orange shirts.
22. I could also see some other people standing behind them.
23. I observed a male aboriginal wearing dark clothes and a dark back pack.
24. This matched the description the victim had just provided to me of one of the offenders.
25. I slowed the car and pointed to the side of the road.
26. I said to the victim, 'Is that one of them'.
27. The victim said, 'Yes.'
14 Constable Boyle stated that she and Constable Cruz-Parker left the police vehicle. She observed another Aboriginal man who was wearing a red-coloured jacket and hat. This person matched the description that Mr Ormerod had given of one of the people involved in the robbery.
15 Raymond Paul Clayton is a traffic controller who was working at the McGregor Street entrance to the Festival on the evening of 24 August 2013. He also provided a statement to the police in which he said that at about 10 pm he saw two Aboriginal men arguing with another man who he identified from his accent as being Irish. He and another worker, Peter Pulham, sought to intervene to prevent the fight from escalating. An argument developed between Mr Clayton and the Aboriginal men. Mr Pullham managed to separate the man who was described by Mr Clayton as the 'Irish guy'. However, the 'Irish guy' suddenly rushed at one of the Aboriginal men and shoved him back onto the ground. The man who had been shoved got up and pulled a hammer from out of his jeans. He held the hammer above his head and started swinging it at the 'Irish guy'.
16 Mr Clayton did not see the police arrive, but he said that at this point he saw two female police officers move through the crowd and tackle the two Aboriginal men. He described how the men were then arrested.
17 Mr Pulham also provided a statement to the police that contained a similar account to that given by Mr Clayton on the confrontation between the two Aboriginal men and the 'Irish guy'. He stated that the police had intervened after the 'Irish guy' had pushed one of the men to the ground. The man who had been pushed then produced a hammer which he had swung at the 'Irish guy'.
18 Mr Clayton and Mr Pulham provided a description of the two men who were involved in the altercation with the 'Irish guy'. It was submitted on behalf of Mr Kennedy and Mr Dixon that there were significant differences between the description that they gave and the description of his assailants provided by Mr Ormerod to Constable Cruz-Parker and Constable Boyle.
19 The prosecution brief contained photographs of clothing seized from Mr Kennedy and Mr Dixon and of a backpack that was found in the area where the confrontation where the Aboriginal men and the 'Irish guy' had occurred. Again, it was contended on behalf of Mr Kennedy and Mr Dixon that there were significant differences between the items of clothing that were seized and the backpack and the description of those items given by Mr Ormerod.
Statements sought to be excluded
20 Mr Kennedy and Mr Dixon accepted that Mr Ormerod could give evidence about the descriptions that he had provided to the police officers of the two men who had allegedly robbed him. However, they objected to the State being permitted to lead evidence from Mr Ormerod about the identification that he said he had made from the police vehicle when it had returned to the Festival entrance/exit - that is, the evidence contained in pars 75 to 82 and 89 to 91 of his witness statement (as reproduced above).
Admissibility
21 It was conceded by the appellants that the evidence proposed to be given by Mr Ormerod was admissible subject to the court's discretion to exclude evidence that was unfairly prejudicial: see, for example, Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395; Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 and McKechnie J in Kelly v The Queen [2002] WASCA 134; (2002) 129 A Crim R 363 [36].
The submissions made on behalf of Mr Kennedy and Mr Dixon
22 Counsel for Mr Kennedy and Mr Dixon advanced several reasons for why the identification evidence proposed to be led from Mr Ormerod should be excluded in the exercise of the court's discretion to ensure a fair trial. Inevitably, those reasons were not neatly organised around each of the grounds on which it was contended that the evidence should be excluded – the allegedly prejudicial effect of the evidence shaded into the reasons for why for it was said that it would be unfair to permit the evidence to be adduced.
23 In summary, it was contended that:
(a) It was not necessary for Mr Ormerod to have accompanied the police when they searched for his assailants and it was improper for the police to have requested him to do so.
(b) The effect of allowing Mr Ormerod to go with the police was that he was permitted to engage in a 'confrontational' identification. Evidence of identification obtained in that way is inherently unreliable.
(c) The accused were involved in a violent confrontation at the time that they were apprehended and so it had not been necessary for Mr Ormerod to identify them in order for an arrest to be made. Further, the query made by Constable Boyle ('is that him') indicated that she had already formed a suspicion that would have enabled her to arrest at least one of the accused.
(d) There was also the risk of suggestion in the way in which Mr Ormerod had identified the accused. The probative value of the identification evidence was so slight as to enliven a discretion to exclude.
(e) Moreover, there were a number of other problems with the identification purportedly made by Mr Ormerod – the circumstances in which it was made (at night, a cross-cultural identification following the query from Constable Boyle and while the accused were apparently involved in a violent confrontation); the generality of the description given by Mr Ormerod and the differences between that description and the appearance of the accused as recorded following their arrest.
(f) The police officers had departed from prescribed procedures and there was a much better or much safer method of obtaining the evidence which had not been used. There was a reasonable opportunity to obtain the evidence in a way that would have been fair to the accused but the police had not availed themselves of that opportunity.
Relevant principles
24 The dangers associated with some forms of identification evidence have long been recognised: see, for example, Davies v The King [1937] HCA 27; (1937) 57 CLR 170 in which it was held that a conviction should be quashed as unsafe where the identity of the offender was based solely on evidence of a witness who had been shown the accused alone and while he was a suspect. Mason J observed in Alexander that:
The problems which afflict identification evidence have their origin in four principle sources: (a) the variable quality of the evidence much of which is inherently fragile; (b) the use by the police of methods of identification which, though well suited to the investigation and detection of crime, are not calculated to yield evidence of high probative value in a criminal trial; (c) the consequential need to balance the interest of the accused in securing a fair trial against the interests of the State in the efficient investigation and detection of crime by the police; and (d) the difficulty of accommodating the reception of certain types of identification testimony to accepted principles of the law of evidence (426).
25 The tendency in Australian cases has been to find that identification evidence is admissible regardless of the way in which the evidence was obtained and to view the manner in which the evidence was secured as a matter going to its weight and sufficiency. So, in Alexander, a case involving photograph identification,the High Court accepted that groupidentification by identity parade was the safest and most satisfactory way of obtaining evidence of identification. However, the Court held that evidence of identification obtained by other means was admissible, subject to the court's discretion to exclude where a strict application of the rules of evidence would operate unfairly to an accused person; and see R v Bouquet [1962] SR (NSW) 563, which was cited with approval in Alexander and Festa; and also Roser v The Queen [2001] WASCA 190; (2001) 24 WAR 254.
26 English cases have drawn a distinction between identification evidence obtained during an investigation and evidence gathered after a suspect has been arrested. Self-evidently, the purpose of the former is to assist in detecting the offender; the purpose of the latter is purely evidentiary. Evidence of the identification of a suspect during an investigation has been held to be admissible; evidence of an identification made post arrest has been held to be inadmissible, at least where it involved photo identification.
27 The appellant in Alexander sought to rely on the English authorities. However, the High Court held that the rules governing the admissibility of identification evidence had to be flexibly applied so that questions concerning the probative value of the evidence, its prejudicial effect and fairness could be determined according to the particular circumstances in which the evidence had been obtained. Identification evidence was not to be automatically excluded merely because of the circumstances in which it was acquired.
28 Mason J (with whom Aickin J agreed) explained the reasoning behind the English approach. The concern with photo identifications made after an arrest was that the jury could infer that an accused person had a criminal history since the police apparently possessed their photograph. Consequently, the prejudicial effect of the evidence was thought to outweigh its probative value. Evidence that would ordinarily be inadmissible might be indirectly presented to the jury. However, evidence of an identification made prior to an arrest was admissible as it had a probative value that outweighed any unfairness to the accused.
29 As has been observed, the High Court in Alexanderrejected an inflexible approach to the admissibility of identification evidence. Mason J explained that there may be circumstances in which evidence of a post arrest identification may have considerable probative force or unduly hamper the efficient conduct of a police investigation if rigid limits were placed on the means by which identification evidence could be gathered. There was a balance to be struck between the probative value and the prejudicial effect of the evidence and between the interests of the police and prosecuting authorities and the accused.
30 Gibbs CJ in Alexander stated that identification evidence could be excluded where the strict rules of admissibility would operate unfairly against the accused, such as where the evidence was of little weight but was likely to be gravely prejudicial. Gleeson CJ further explained the concept of prejudice in this context in Festa. His Honour observed:
If evidence is of some, albeit slight, probative value, then it is admissible unless some principle of exclusion comes into play to justify withholding it from a jury's consideration. It is not enough to say it is 'weak', and as already mentioned, whether it is weak might depend on what use is made of it [14].
31 His Honour noted that showing a victim a group of photographs that included the accused raised two risks: a risk of error through suggestion and a risk that the jury would speculate that the accused had a criminal history. The first kind of risk concerned the probative value of the evidence. The second kind of risk concerned the risk of unfair prejudice: a risk that a fact will be suggested that was ordinarily excluded from evidence in the interests of fairness to an accused. However:
… prejudice does not arise simply from the tendency of admissible evidence to inculpate an accused. It is unfair prejudice that is in question. Where evidence is relevant and of some probative value, prejudice might arise because of a danger that a jury may use the evidence in some manner that goes beyond the probative value it may properly be given. If there is relevant prejudice of that kind, it lies in the risk of improper use of the evidence, not in the inculpatory consequences of its proper use. If it were otherwise, probative value would itself be prejudice [22].
32 Similarly, McHugh J noted:
But the weakness of relevant evidence is not a ground for its exclusion. It is only where the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only where the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task [51].
33 And:
In exercising the discretion to exclude positive-identification evidence, the judge must take account of the risk that that evidence will be given greater weight than it deserves and will operate to the prejudice of the accused. In considering that risk, the judge must determine whether the Domican directions that will be given will be likely to overcome the prejudice that might ensue without those directions. If, despite those directions, the risk of prejudice remains and the evidence is weak, the proper exercise of the judicial discretion may require the exclusion of the evidence [65].
34 The police in Festa had not followed the Queensland Police Operational Procedures Manual in obtaining the disputed identification evidence (the Manual prescribed post arrest identifications by identity parades or by large group methods where that was not practicable). Gleeson CJ observed in relation to the departure:
It was not argued at trial that departure from the policy in the present case constituted illegality such as warranted exclusion of the evidence in accordance with the principles in Ridgeway v The Queen [(1995) 184 CLR 19]. The argument was that the relevant discretion was that which permits a trial judge to exclude evidence on the ground that its probative value is outweighed by the risk of unfair prejudice. It is one thing to criticise the police for failing to adopt a better and fairer method of investigation. It is another to conclude that the existence of grounds for such criticism should result in the exclusion of evidence having probative value [24].
35 In Kelly, a police officer, Constable Gilbert, confronted two men who he had believed were driving a stolen vehicle. He attempted unsuccessfully to apprehend the driver. Shortly afterwards, two other police officers arrested two men who they believed had been driving the stolen vehicle. They brought one of the men to Constable Gilbert who identified the man as the person who had been the driver of the vehicle. The Court of Appeal held that Constable Gilbert's evidence of identification was admissible and that the trial judge had not erred in refusing to exclude the evidence in the exercise of his discretion.
36 Anderson J focussed on whether there had been impropriety or serious unfairness in the way in which the evidence had been obtained:
Generally speaking, the discretion will be enlivened if there is evidence of bad faith or impropriety in the identification process or if it is attended by sufficiently serious elements of unfairness: Nesbitt v Sutton [2001] WASCA 114 per Murray J at par 17 - 18. Where a much better or much safer method of identification was available but not used, and there was no explanation for not using it, that might be enough: Roser v The Queen (2001) 24 WAR 254, especially at par 87 … [18].
37 The evidence had been properly admitted as there was no suggestion of impropriety or bad faith on the part of the police officers who brought the appellant to Constable Gilbert for the purpose of a possible identification. As to the risk of suggestion, Anderson J observed that Constable Gilbert was not 'a lay bystander whose mind was likely to be affected by being shown the appellant in the police car' [20].
38 McKechnie J identified a number of what he described as 'special rules' that had been developed for dealing with the problems associated with identification evidence. So far as is relevant to these applications, his Honour noted that evidence of a witness who briefly observes a suspect at a crime scene is generally admissible 'as part of the circumstances surrounding the alleged criminal transaction even if the observer is unable to positively identify the suspect on a later occasion'. The exercise of a judicial discretion to exclude the evidence was enlivened but, generally, the evidence was regarded as being probative [36].
39 His Honour further noted that the discretion to exclude identification evidence may be enlivened where an initial observation was for a short period and there had been a long time between the observation and a subsequent identification [44]. Further, some methods by which identification evidence had been gathered may 'produce a result so lacking in probative value as to be inadmissible' or 'the probative value may be so slight as to enliven the judicial discretion'. However, his Honour added that identification evidence was generally admitted where it has some probative value [46].
40 Finally, McKechnie J recognised that identification evidence may be excluded on grounds of fairness:
The public interest considerations and balancing the different factors involved in this discretion can, on occasion, be difficult. There is a public interest in the prompt apprehension of offenders so that, for example, the actions of police in showing a suspect to an observer, without any opportunity for comparison, may be appropriate, brought about by the exigencies of the moment. The use of photo boards is an important investigative tool but has the potential to affect the reliability of evidence, especially if the observer is given a later opportunity to visually identify a suspect. Where police action, or inaction, has failed to provide appropriate safeguards for the identification of suspects, the public interest might require the general rejection of evidence obtained without safeguards. There is more likely to be rejection of the evidence when there was a reasonable opportunity to obtain such evidence with safeguards [49].
41 Counsel for Mr Kennedy and Mr Dixon referred in their submissions to the judgment of King CJ (with whom Mohr and O'Loughlin JJ agreed) in The Queen v Hallam and Karger (1985) 42 SASR 126. In that case, a taxi driver had been robbed by two young passengers. A few hours later, two young passengers attempted to rob another taxi driver. The appellants were spoken to by the police at a shopping centre shortly after the second incident. The taxi driver involved in the second incident received a message that the police wanted him to attend at the shopping centre. The only persons present at the shopping centre when he arrived were the police and the two appellants. The taxi driver was asked whether the appellants were his assailants and he identified them as such. There was no subsequent attempt at identification by an identity parade or photograph selection.
42 King CJ described the circumstances in which the purported identification at the shopping centre had occurred as being 'most unsatisfactory'. His Honour observed:
The element of suggestion involving in the two young men being in the company of the police was great and there was no other civilians present to provide any element of selection. An identification made in such circumstances is virtually valueless: Davies v Cody (1937) 57 CLR 170 (129).
43 His Honour further observed:
It should be emphasised that the proper method of procuring evidence of identification is by the identification parade. Identification by selection of photographs is open to grave objections and should be resorted to only where unavoidable. That method may be unavoidable, during the course of an investigation, where there is no definite suspect or where the suspect will not consent to an identification parade. If it has to be resorted to, it must be recognised as the inferior form of identification which it is, for the reasons emphasised by the High Court in Alexander's case. Identification by confronting the victim in circumstances which will suggest to the victim that the suspect is under suspicion is a virtually valueless form of identification which should be resorted to only in the most exceptional situations. Whether such a situation existed in the present case with respect to the [second taxi driver's] identification cannot be known because there was no voir dire hearing enabling the circumstances to be investigated (130).
44 It is relevant to note that his Honour also recognised that there may have been circumstances in which the police had no alternative but to ask the taxi driver to attempt an identification of his assailants at the shopping centre - in particular, where they may not have had proper grounds for arresting the appellants and could not know whether the search for the culprits should continue without some form of immediate identification being undertaken by one of the victims (130).
45 In R v Story [2004] SASC 32; (2004) 144 A Crim R 370, the appellant was convicted of assault with intent to rape. Two witnesses saw the complainant being seized by a man. They then saw the complainant break free and the man walk away from the area where the complainant had been seized. The witnesses provided a description of the man to a security guard. The guard communicated the description by radio to the police. Subsequently, the witnesses saw a man standing with a police officer and the security guard. One witness pointed to the man and said, 'That's the man', and then shouted obscenities at him. The witnesses spoke to another police officer and confirmed that the man they had seen with the security guard and the police officer was the man who had attacked the complainant. There was no evidence that the police had arranged for the identification to occur in those circumstances.
46 On appeal, the court accepted that there was a risk of suggestion in the way in which the identification had occurred. Gray J described that risk by referring to the judgments in Alexander and Hallam and Karger. His Honour considered that there were two grounds on which the identification evidence might have been excluded in the exercise of a discretion: first, if the police had acted improperly and second, if the evidence was inherently unreliable. However, his Honour, and the other members of the Court of Criminal Appeal, considered that the evidence of the witnesses was admissible and ought not to have been excluded as a matter of discretion despite the risk of suggestion. They regarded the case as distinguishable from the circumstances in Hallam and Karger, and that any possible unfair prejudice suffered by the appellant could be addressed by an adequate warning to the jury.
47 Finally, counsel for Mr Kennedy and Mr Dixon referred to the decision of the Court of Appeal in Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159 and, in particular, to the following passage concerning the vulnerability of identification evidence to suggestion:
There are a number of aspects of this vulnerability to suggestion, including a possibility that a witness will pick out someone from photographs, or from a group of persons selected by the police, because he or she expects the group to contain the offender, and the possibility that a person may substitute in the person's memory an image of someone seen elsewhere (possibly in photographs selected or a parade organised by the police) for a hazy recollection of an offender [13].
48 There is, however, a further aspect of the court's judgment in Winmar that was not referred to by the parties but which is, in my view, relevant to these applications. The court considered research evidence on the relationship between the quality of a description provided by a witness and the accuracy of the witness's identification of the person described. The research did not support the proposition that the accuracy of a description given by a witness was a significant factor in assessing the reliability of identification evidence. Several reasons were suggested for that apparently counter-intuitive result, including that the process of describing something involved trying to recall it and to put what was recalled into words, while the process of recognition was a different and relatively 'holistic' process [66]. Accordingly, description and recognition were apparently cognitively different functions so that an identification may be accurate even if it did not match a description given by a witness. It was common experience in courts that many people were not good at providing accurate estimates or clear descriptions of matters such as distance, height, weight and even colour. Accordingly, the Court of Appeal considered that it was not necessary for a trial judge to warn a jury about matters such as discrepancies between the description given by a witness and the appearance of the person identified.
The request for Mr Ormerod to accompany the police
49 The arguments made on behalf of Mr Kennedy and Mr Dixon commenced with the proposition that the police ought not to have invited Mr Ormerod to accompany them when they left the shopping centre in search of his assailants. It was said that Mr Ormerod had provided a description that was sufficient to enable the police to conduct a search and arrest anyone matching the description that had been given. Consequently, it had not been necessary for the police to invite Mr Ormerod to accompany them while they searched for his assailants; indeed, the police officers' decision created the obviously undesirable risk of a confrontation between Mr Ormerod and the men allegedly involved in the robbery.
50 This submission was apparently directed to the comments made by Anderson J in Kelly that were cited above. It is to be noted that his Honour's comments referred back to his judgment in Roser, particularly at [87]. The concern in Roser was with the use of photo identification evidence where the accused had been arrested and there was no reason why an identity parade could not have been organised. Roser was not a case in which a witness was asked to make an identification prior to the arrest of the accused.
51 Nevertheless, it must be accepted that identification evidence improperly acquired at any time may be excluded in the exercise of the court's discretion. The discretion would be enlivened on public policy and fairness grounds. However, the notion of impropriety must reflect the context in which the evidence was obtained. As King CJ recognised in Hallam and Karger and as the decisions in Story and Kelly acknowledged, the circumstances in which a suspect is identified during a police investigation and prior to apprehension may be significantly different from those in which identification evidence is gathered following an arrest. That distinction is made in the English authorities that were considered in Alexander – the purpose for which an identification is sought from a witness will be very different prior to and after the arrest of a suspect.
52 In my view, the criticism the police officers' decision to have Mr Ormerod accompany them while they searched for his assailants was misplaced. The submission apparently either overlooked that, according to the witness statements, Mr Ormerod described his assailants after he had got into the police car and while the vehicle was being driven back towards the Festival entrance, or implicitly assumed that the police officers ought to have first obtained a description from Mr Ormerod before setting off in search of his assailants, leaving him behind at the shopping centre. However, Mr Ormerod claimed to have just been robbed. There was a risk that his assailants could escape if the search was delayed. Further, Mr Ormerod's assailants had walked off towards the Festival entrance where there were apparently a number of other people present. The presence of other people in a public area would add to the difficulties of identifying the alleged offenders even if the police had obtained a description from Mr Ormerod before commencing their search.
53 Moreover, the comments made by the Court of Appeal in Winmar concerning the differences between description and recognition reflect common experience. A person may not be capable of providing a useful description of another person and yet be able to immediately recognise that person.
54 The police were entitled to take such steps as they thought appropriate to maximise the chances of locating Mr Ormerod's assailants and to minimise the risk of apprehending the wrong persons. I do not consider that the police acted improperly or unnecessarily in requesting that Mr Ormerod accompany them. The request appears to have been reasonable and justifiable given that the incident had just occurred and there were a number of people in the vicinity because of the Festival. It does not appear that the police were motivated by the possibility of improperly obtaining evidence through, for example, a 'confrontational' identification; nor do I think that it could be said that they acted improperly in choosing not to rely solely on whatever description of his assailants that Mr Ormerod may have been able to provide. Obviously, the police officers could not anticipate at the time that the decision was made that they might be able to apprehend Mr Ormerod's alleged assailants on other grounds because they had become involved in another violent incident.
The manner in which the identification evidence was obtained
55 It was submitted that the purpose of inviting Mr Ormerod to accompany the police officers was to enable him to undertake a 'confrontational identification' - that is, to attempt to identify his assailants 'one-on-one'. It was suggested that this form of identification suffered from the same defects as a 'dock' identification or other forms of single person/image identifications. Reference was made to the Western Australia Police Commissioner's Orders and Procedures Manual which states, among other things, that 'a single image of a suspect should never be shown to a witness for identification purposes, likewise, a witness should never be shown the suspect in person unless in the form of an identification parade'. The manual further recognises that there is an onus on the police to exercise care in obtaining visual identification evidence and to use 'acceptable' methods of identification such as group identification.
The location of the purported identification
56 As has already been indicated, I do not consider that it is open to conclude on the material contained in the prosecution brief that the purpose of the police officers' request was to enable Mr Ormerod to undertake a 'confrontational identification'. The police drove from the Boulevard Shopping Centre towards the Festival entrance in the expectation that this was where Mr Ormerod's assailants might be found. It is to be inferred that they anticipated that other people would be at the exit. Accordingly, it was likely that an identification made by Mr Ormerod would not be 'one-on-one' but rather, while his alleged assailants were among a group of people. The witness statements taken by the police indicate that there were a number of people in the vicinity of the entrance when Mr Kennedy and Mr Dixon were arrested and Mr Ormerod made his identification.
The Police Manual
57 The parts of the Police Manual to which reference was made were apparently concerned primarily with gathering evidence following an arrest. At that point, the police will have acquired sufficient information to make an arrest and arrangements can usually be made for an identity parade or similar form of group identification to be conducted.
58 Decisions made in the course of a police investigation prior to the arrest of a suspect raise different considerations. For the reasons already given, I do not consider that the police acted improperly or departed unnecessarily, or in a way that was undesirable, from prescribed procedures when they requested Mr Ormerod to accompany them on their search for his assailants. In any event, I would not exclude the evidence even if there had been some departure from the practices specified in the Police Manual - the evidence has probative value and as the reasoning in Alexander and the result in Festa indicate, the fact that identification evidence has been obtained in a way that is inconsistent with the practices stipulated in a police manual does not automatically mean that the evidence will be excluded. In my view, any prejudice to Mr Kennedy and Mr Dixon from the manner in which Mr Ormerod purportedly identified them as his assailants can be cured by an appropriate direction.
Constable Boyle's question
59 It would have been preferable if Constable Boyle had not pointed to one person among those at the Festival entrance and asked, 'is that him'? Rather, it would have been better if she had simply asked Mr Ormerod whether he could see either of the men who had attacked him among the people who were at the entrance. However, Constable Boyle's response on seeing a person that she thought might match the description given Mr Ormerod was understandable in the circumstances.
60 There was an element of suggestion in the question but the context was very different to the one-on-one identifications that have been the subject of criticism and concern in the cases referred to earlier. In those cases, the police had singled out a person and subsequently presented that person to a witness for identification. The witness was susceptible to the suggestion that there must have been a reason for the police to single out the person concerned; that, accordingly, the person presented for identification must be the offender; and that, therefore, the person must have been the person who the witness had previously observed at or near the scene of the crime. In this instance, the police and Mr Ormerod embarked on the search together. The police were dependent on Mr Ormerod to identify his assailants – a fact that was known to Mr Ormerod. There was no scope for Mr Ormerod to make an assumption about the person spotted by Constable Boyle other than, perhaps, that the appearance of the person concerned might correspond with the description that he had given to the police moments before. There is nothing in the statements obtained by the police to suggest that Mr Ormerod was pressurised into adopting Constable Boyle's suggestion. He was the person who was to guide the police officers by identifying his assailants if possible. He was not a witness being asked to confirm the identity of a suspect who had already been apprehended by the police.
61 Finally, I do not consider that it can be necessarily inferred from the statements of Mr Ormerod and the police officers that Constable Boyle had already formed a suspicion about the identity of the alleged offenders sufficient to justify an arrest when she put her question to Mr Ormerod.
The discretion to exclude the evidence
The probative value of the evidence
62 It was contended that the evidence to be led from Mr Ormerod was unreliable having regard to the circumstances in which the identifications were purportedly made – the unreliability of the evidence being apparent from a comparison between the descriptions that he had provided of his assailants and the appearance of the accused as recorded by the police following their arrest and as described by Mr Clayton. A number of differences between Mr Ormerod's descriptions and the appearance of the accused were noted – see, in particular, Mr Kennedy's submissions at par 23. Accordingly, it was said that the probative value of the evidence was slight and readily outweighed by its prejudicial effect.
63 There was a tension between this submission and the argument that it had been unnecessary for the police to request Mr Ormerod to accompany them as he had provided a sufficiently detailed (and, by inference, accurate) description to enable his assailants to be identified and arrested without his further involvement. More substantively, Mr Ormerod's evidence obviously has probative value if accepted. It is evidence of a kind regarded by McKechnie J in Kelly as being ordinarily admitted 'as part of the circumstances of the criminal transaction'. The potential value of the evidence would appear to be especially apparent when it is to be given by the victim of the alleged crime. It is evidence that would be admitted even under the more rigid approach to identification evidence adopted in the English authorities.
64 The argument that the evidence was unreliable rested on matters that are, in my view, properly to be assessed by a jury. As was observed in Festa, the mere fact that identification evidence might be characterised as 'weak' or 'slight' does not provide a basis for its exclusion. The comment by McKechnie J in Kelly that the probative value of some forms of identification evidence may be 'so slight as to enliven the judicial discretion' must be understood, in my view, as a reference to evidence that is so inconsequential or so tainted that its reception might serve to distract the jury from the real issues to be decided and so prejudice the fair trial of the accused.
65 Further, the reference by Gray J in Story to evidence being excluded as 'inherently unreliable' is to be understood as a reference to evidence tainted with imperfections of the kind that concerned King CJ in Hallam and Karger. For the reasons that I have already given, I do not consider that Mr Ormerod's evidence is necessarily tainted in that way or can be characterised as inherently unreliable in some other respect. Indeed, the circumstances in which Mr Ormerod purportedly identified Mr Kennedy and Mr Dixon appear to be similar to those envisaged by King CJ as justifying 'one-on-one' identifications – although, in this instance, Mr Kennedy and Mr Dixon were among a group of people when they were first identified. Gleeson CJ in Festa recognised that the way in which identification evidence was acquired during a police investigation could affect its reliability but that did not mean that the evidence should be excluded. Rather, how the evidence was obtained and its affect on its reliability were matters for the jury acting on proper and full directions.
The prejudicial effect of the evidence
66 As Gleeson CJ and McHugh J explained in Festa, identification evidence is not prejudicial merely because it implicates an accused person. The nature of the evidence must be such that it is likely that it will be improperly used by the jury; that it will distract the jury from the real issues to be decided or in some other way distort their fact finding. Plainly, it will be necessary for the jury to be directed on the use that they may make of Mr Ormerod's evidence, including warnings of the kind discussed in Domican v The Queen (1992) 173 CLR 555 and Winmar. It will be necessary to refer to the fact that Mr Ormerod is a 'lay' person when directing the jury on the possibility that his identifications were the product of suggestion – see the comments of Anderson J in Kelly cited earlier - and on all of the circumstances relevant to the assessment of the reliability of the evidence.
67 However, I cannot see why the jury would improperly use Mr Ormerod's evidence with the benefit of those directions given the conclusions that I have reached about the circumstances in which Mr Kennedy and Mr Dixon were identified.
Fairness
68 I have already concluded that there was nothing improper in the way in which Mr Ormerod identified Mr Kennedy and Mr Dixon as his assailants. There are, in my view, no public policy reasons why the evidence should be excluded or, more broadly, no reason why the fair trial of Mr Kennedy and Mr Dixon would be jeopardised if the evidence was admitted.
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