The State of Western Australia v Duffy - [2016] WASC 262

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- DUFFY [2016] WASC 262

CORAM: MARTINO J

HEARD: 12 AUGUST 2016

DELIVERED : 12 AUGUST 2016

FILE NO/S: INS 42 of 2016

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
MARGARET PATRICIA DUFFY
Defence

Catchwords:

Criminal law - Evidence - Identification

Legislation:

Nil

Result:

Application successful in part

Category: B

Representation:

Counsel:

Prosecution : Mr D T Carlson
Defence: Ms H K Muhling

Solicitors:

Prosecution : Director of Public Prosecutions (WA)
Defence: Helen Muhling

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

Alexander v The Queen (1981) 145 CLR 395
Festa v The Queen [2001] HCA 72, (2001) 208 CLR 593
Kelly v The Queen [2002] WASCA 134; (2002) 129 A Crim R 363
Mahantheran v The State of Western Australia [2014] WASCA 232
Murray v The State of Western Australia [2009] WASCA 18
Neville v The Queen [2004] WASCA 62
Pitkin v The Queen [1995] HCA 30; (1995) 130 ALR 35
Rankins v The State of Western Australia [2007] WASCA 51
Winmar v The State of Western Australia [2007] WASCA 244, (2007) 35 WAR 159
MARTINO J:
(These reasons have been edited from the transcript).

The accused is charged on an indictment dated 24 March 2016 with armed robbery of a pharmacy in company. The trial is listed to commence on 5 September 2016.
By an application dated 3 August 2016, the accused objects 'to the admissibility of the identification evidence regarding the digiboard identification of the accused'. On 8 August 2016, pursuant to a direction made on 4 August 2016, the accused's counsel filed written submission in support of the application. In par 1 of those submissions, the accused's counsel states:
The defence objects to the admissions into evidence of the digiboard identification of both the co-accused and the accused.
The State's case is that at approximately 2.30 pm on 10 September 2015, the accused and the co‑accused entered the Baldivis Pharmacy. Both of the accused were wearing sunglasses. The accused was wearing a black hooded jumper. The co‑accused was wearing a blue hooded jumper. The two accused approached the counter and spoke to Rebecca Pullen, a staff member, about hair dyes and head lice treatments. The accused walked around inside the pharmacy while Ms Pullen spoke to the co‑accused. At times, the accused engaged in short conversations with Ms Pullen.
The co‑accused asked the accused several times, 'Do you want to do it?' The accused nodded and said, 'Yeah'. The co‑accused then pointed a blood‑filled syringe at Ms Pullen and said, 'This is an armed holdup. I need you to get me what I want and if I don't get what I want I will hit you with it and it's full of blood which is HIV positive'. In the course of the robbery, the accused held a knife in her left hand and two blood‑filled syringes in her right hand. The accused and the co‑accused left the pharmacy with $600 cash and three bottles of diazepam. They drove away in a blue Ford Falcon.
On 11 September 2015, police officers stopped the Ford Falcon. The co‑accused was driving and the accused was the front seat passenger. They were both arrested and charged with armed robbery.
On 23 September 2015, a police officer showed Ms Pullen two digiboards, each containing 12 photographs of women. One digiboard had the accused's photograph and the other had the co‑accused's photograph. Ms Pullen identified the accused and the co‑accused. The process of Ms Pullen being shown the digiboards was in accordance with the usual police practice and was visually recorded. A copy of the DVD recording was played at this hearing. Prior to being shown a digiboard, when the process was being explained to her, Ms Pullen said, 'I guess I’ve just got to try and picture their faces without the hoodie and the sunglasses on'.
When shown the digiboard containing the photograph of the accused, Ms Pullen said, 'Number 7, I think, was the woman in black'. The co‑accused has pleaded guilty and been sentenced, and the State proposes to call her as a witness at the trial.
I turn now to the applicable principles. There are two possible bases upon which the evidence of Ms Pullen's identification of the accused and co‑accused might be ruled inadmissible. One basis is relevance. If a method of securing the identification of a witness is so flawed that it produces a result that lacks any probative value, the evidence is inadmissible: Kelly v The Queen [2002] WASCA 134; (2002) 129 A Crim R 363 [17] and Neville v The Queen [2004] WASCA 62 [36].
The second basis is the exercise of a judicial discretion to exclude relevant evidence. In the exercise of this discretion, the weakness of the evidence can be a factor. In Festa v The Queen [2001] HCA 72, (2001) 208 CLR 593, McHugh J said:
But the weakness of relevant evidence is not a ground for its exclusion. It is only when 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 when 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].
The defence submits that the fact that Ms Pullen identified the co‑accused is irrelevant to any issue in this case and is prejudicial.
On 11 August 2016, the State filed an outline of submissions on the accused's application. Those submissions do not refer to this objection to the evidence of identification of the co‑accused. Perhaps that is because the application itself did not refer to the objection to that evidence and the time limited to the State to file its submissions was quite limited.
However, today, counsel for the accused has confirmed that objection to that evidence and both parties have made submissions on it. The circumstance of aggravation alleged against the accused that she was in company means that the State must prove that there was a second person at the pharmacy involved in the robbery. The defence is not going to suggest to the co‑accused, when she is called, that her evidence that she was involved in the robbery is not true. That has been confirmed by counsel for the defence today. The fact that the witness, Ms Pullen, correctly identified the co‑accused, it seems to me, does not make it more likely that she correctly identified the accused. A person may correctly identify one person and make an error about another person.
However, I am concerned that if the members of the jury are aware that the witness, Ms Pullen, correctly identified the co‑accused, they may reason that it was more likely that her identification of the accused is correct. This does not seem to me to be a correct process of reasoning. It seems to me that the relevance of the evidence is marginal and its prejudicial effect is likely to be significant by reason of that risk of what I regard as incorrect reasoning.
It is my view, therefore, that in the exercise of judicial discretion, I should order that the identification of the co-accused in that digiboard process is not to be led.
I turn now to the defence objections to the evidence of the identification of the accused. There were a number of matters put forward by counsel for the accused which she submits individually and in combination mean that the evidence should be excluded. The first matter raised by counsel for the accused was that there was no identification parade.
Counsel for the accused has referred to Alexander v The Queen (1981) 145 CLR 395 and Winmar v The State of Western Australia [2007] WASCA 244, (2007) 35 WAR 159 [2]. At [2] of Winmar, the Court of Appeal said:
So far as photographic identification is concerned, somewhat different views have been expressed in this court about what a jury should be told concerning the alleged unsatisfactory nature of photographic identification: compare Roser v The Queen [2001] WASCA 190, (2001) 24 WAR 254 at [64], per Anderson J with Collard v The Queen [2000] WASCA 417 at [77] to [78], per Miller J. Whatever the precise form of direction, it seems to have been accepted on all sides that photographic identification is necessarily significantly inferior to identification by means of an identification parade: Collard at [14], per Kennedy J and at [75] to [79] per Miller J.
However, it is now settled law in this State since Winmar that the fact that there has not been an identification parade is not on its own sufficient to warrant exclusion of digiboard identification evidence. In fact, it is now clear that in this State the digiboard process is not inherently inferior to an identification parade.
In Winmar, the court said, at [55]:
Having regard to what is currently known about the difficulties affecting identification, and having regard to the nature of the digiboard process as we have described it, it is our view that this court should firmly reject any suggestion that the digiboard process is inherently inferior to an identification parade. The court should not, as some past authority may tend to suggest, attempt to discourage the use of the digiboard for identification, either by requiring trial judges to warn juries specifically about the dangers of that process as compared to an identification parade, or by requiring trial judges to suggest to juries that the process is inherently flawed, or by suggesting that trial judges should be readier, in the exercise of their discretion, to exclude digiboard identification than they might be to exclude evidence of identification by other means.
The words in [2] of Winmar to which counsel referred were simply introducing the issues to be considered in the analysis that followed. The mere fact that there was no identification parade does not warrant the exclusion of the evidence of the digiboard identification of the accused.
The next ground of objection relates to the age of the other persons whose photograph appeared on the digiboard. The photograph of the accused used in that digiboard was taken on 12 September 2015. The robbery took place the previous day. In September 2015, the accused was 42 years old. The eleven other women whose photographs were on the digiboard were aged from 21 to 32 years. Counsel for the accused submitted that by reason of the fact that ten of the eleven women were more than a decade younger than the accused and the other woman was close to a decade younger, the photographs were not of women of a similar age as the accused and so the process was unfair because the accused stands out on the digiboard by reason of her age.
It may be that the more closely photographs of other persons resemble a suspect, the more satisfactory the identification process, although this proposition is not universally accepted: Winmar [50].
It is undesirable that anything in the circumstances of the identification process suggests to the witness that one person is more likely to be the offender: Winmar [51].
One of the advantages of the digiboard process is that in practical terms it offers the opportunity of obtaining a number of photographs of people resembling the subject: Winmar [52].
The photographs on the digiboard on which the accused's photograph appears are photographs of women who appear similar to the accused. In my view, there is nothing about the photographs which makes the accused stand out. The digiboard does not suggest that the accused is the offender or that she is different from the other women whose photographs appear on it. The age difference does not mean that the identification of the accused by Ms Pullen lacks any probative value. Nor is it in any way prejudicial to the accused. The age difference between the accused and the other women in the digiboard does not warrant the identification of the accused by Ms Pullen being excluded.
The third ground upon which counsel for the accused submits that the identification evidence should be ruled inadmissible is that the offender had a hood over her head and wore sunglasses while in the pharmacy at the time of the robbery. All of the photographs on the digiboard are of women with their heads uncovered who are not wearing sunglasses.
Counsel for the accused also points to the statement by Ms Pullen before seeing the digiboards that she had to try and picture their faces without the hoodie and the sunglasses on. Counsel for the accused submits that the fact that the digitial images were not altered to see if Ms Pullen could identify a person wearing sunglasses and with their head covered by a hood means that the identification is not reliable. I do not accept that submission. The witness was shown a number of photographs. She identified the accused. The jury will be aware that the offender's head was covered and that she wore sunglasses. The members of the jury will be able to take that fact into account in assessing the evidentiary value of the identification by Ms Pullen.
The fact that the photographs did not show women with their heads covered and wearing sunglasses does not make the identification one that lacks probative value or mean that the jurors are likely to give the evidence more weight than it deserves or divert the jury from its task. Nor does the fact that Ms Pullen said that she had to try to picture the offenders faces without the hood and sunglasses. Ms Pullen knew, as the jurors will know, that the offender wore those items and that the persons in the photographs did not.
In stating that she had to try to picture the faces without those items, Ms Pullen was doing no more than stating that when she saw the offenders they were wearing those items but that she would be looking at photographs of people who are not. That is a matter to be taken into account in assessing the weight to be attached to her identification. It goes only to weight, in my view. It does not mean that the identification evidence lacks probative value or is prejudicial.
The next ground on which the accused objects to the identification evidence is that, when identifying the photograph of the accused, Ms Pullen said, 'Number 7, I think, was the woman in black'. The fact that she used the words 'I think' does not mean that Ms Pullen was not identifying the photograph as being a photograph of one of the offenders. A statement by a witness that a person, or a photograph of a person, looks like the offender or is similar to the offender is not identification evidence: Pitkin v The Queen [1995] HCA 30; (1995) 130 ALR 35; Rankins v The State of Western Australia [2007] WASCA 51; Murray v The State of Western Australia [2009] WASCA 18.
However, that is not what Ms Pullen said. She said that she thought that the photograph was of one of the offenders. It was an identification of an offender. The words that Ms Pullen used can be considered by the jurors in assessing that evidence. The words do not mean that the identification evidence lacks probative value or is prejudicial.
The next ground on which the accused objects to the admission of the identification evidence relates to the document titled Image Identification Witness Conversation, on which the police officer who showed the digiboards has recorded the identification process. It is clear from the document and the DVD of the identification process that the document contains a transcript of what the police officer said to Ms Pullen and that it was used to record some of her answers. It was used to record her identification of both of the accused women. The document contains the following words in type: 'You have identified image number as being the person involved in the matter under investigation'. In the space after the word 'number', there has been written in hand '7 8'. It is clear, in my view, that this was because, in the first digiboard, the photograph identified by Ms Pullen was photograph 7. In the second digiboard, she identified photograph 8. The fact that the one form was used for the two identifications does not detract from the reliability of the identification, nor is it prejudicial, nor is it likely to confuse the jurors.
The next ground on which the accused objects relates to the statement given to police by Ms Pullen. The statement was made on 15 September 2015 before Ms Pullen was shown the digiboards. She said in the statement:
The girl in black looked familiar to me. I believe I had seen her in the Kwinana area before. I used to work at the Chisholm Avenue Pharmacy.
The fact that Ms Pullen might have recognised the accused as a person who she might have seen previously does not make her evidence inadmissible. Clearly, the recognition was not of a person whom she knew well. It follows that a full identification warning is likely to be required: Mahantheran v The State of Western Australia [2014] WASCA 232 [34]. However the possible recognition goes only to weight. It does not make the identification of the accused unreliable, nor prejudicial.
None of the reasons put forward by the accused either alone or in combination warrant the exclusion of the identification of the accused, in my view. However, for reasons I have given, I rule that the digiboard identification evidence of the co‑accused is excluded. That means that the DVD of the digiboard process will need to be edited. The jurors may appreciate that Ms Pullen was shown a digiboard with a photograph of the co‑offender. However, the jurors can be told, if it is considered necessary to do so, that whether or not Ms Pullen identified the co‑accused is not relevant to any issue in the trial and they should not guess or speculate on whether she did or did not do so.
The parties should confer as to the edits to be made to that DVD in accordance with these reasons. If any further direction is required following that conferral, I can do so at short notice before the trial commences.