The State of Western Australia v Garlett
[2020] WADC 13
•29 JANUARY 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- GARLETT [2020] WADC 13
CORAM: BOWDEN DCJ
HEARD: 24 JANUARY 2020
DELIVERED : 29 JANUARY 2020
FILE NO/S: IND 1309 of 2019
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
JANICA-RAE GARLETT
Catchwords:
Criminal law - Criminal procedure - Admissibility of identification made from a digiboard
Legislation:
Nil
Result:
Evidence ruled inadmissible
Representation:
Counsel:
| The State of Western Australia | : | Ms S Manson-Grumley |
| Accused | : | Mr B Meshgin |
Solicitors:
| The State of Western Australia | : | The Director of Public Prosecutions |
| Accused | : | Legal Aid - Perth |
Case(s) referred to in decision(s):
Alexander v R [1981] HCA 17; (1981) 145 CLR 395
Beresi v The Queen [2004] WASCA 67
Dhanhoa v R [2003] HCA 40; (2003) 139 A Crim R 41
Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555; (1992) 60 A Crim R 169
Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
Knight v Brown [2004] ACTSC 35; (2004) 183 FLR 135
Mills v The State of Western Australia [2008] WASCA 219; (2008) 189 A Crim R 411
Murdoch v The Queen [2007] NTCCA 1; (2007) 167 A Crim R 329
R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326
R v Fisher [2001] NSWCCA 380
R v Swaffield; Pavic v The Queen [1998] HCA 1, (1998) 192 CLR 159
The State of Western Australia v Bilos [2008] WASC 226
The State of Western Australia v Colbung [2012] WASC 354; (2012) 225 A Crim R 92
The State of Western Australia v GM [2019] WADC 150
Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159
Yarran v The Queen [2001] WASCA 52
BOWDEN DCJ:
It is alleged that on 4 November 2018 at Glendalough Ms Garlett stole from EK, with violence, an Apple iPhone 6 mobile phone and a Transperth Smartrider card the property of EK.
Disputed evidence
The State wish to lead evidence that on 5 November 2018 EK identified Ms Garlett from a digiboard containing12 images.
The defence objects to the admissibility of the digiboard identification on the basis that:
1.the circumstances in which EK initially observed the alleged offender could impact upon the reliability of her memory and her subsequent identification of Ms Garlett;
2.the significant delay between the charged incident and the identification of Ms Garlett;
3.the digiboard was prepared in such a way to improperly distinguish Ms Garlett's images from those of the other women depicted.
The defence say the court should rule the identification evidence inadmissible.
Brief summary of the State's case
It is alleged that on 4 November 2018 shortly after 8.10 pm EK was walking in Glendalough when she was approached by a female who had been walking down the street in the opposite direction.
The alleged offender walked up to EK and asked for a cigarette and a short time later demanded that EK hand over all her possessions including her mobile phone.
EK tried to move away but the alleged offender followed her. EK raised her voice and the alleged offender retreated and hid behind a nearby fence. However the alleged offender returned to where EK was standing. The alleged offender had the hood of her jacket over her head and again demanded EK's belongings and then struck EK four or five times to the face with a clenched fist and took her mobile phone and other property including the Transperth Smartrider card.
EK reported the matter to the police and provided a statement on the same night. It is not in dispute that EK did not know the alleged offender and had not seen her before.
On 6 November 2018 EK's Smartrider card was used by a male who was accompanied by two women, one of whom was Ms Garlett.
Police subsequently searched the residence of the male on 5 December 2018 where they located the Smartrider card. Ms Garlett was staying at those premises.
On 5 December 2018 EK identified Ms Garlett as the alleged offender by picking her photograph from a digiboard containing 12 images.
The law
In The State of Western Australia v GM [2019] WADC 150 I outlined the relevant law and I repeat the substance of those observations.
Evidence of identification by selection from a photo board or digiboard is relevant and admissible: Alexander v R[1981] HCA 17; (1981) 145 CLR 395; Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593; Murdoch v The Queen[2007] NTCCA 1; (2007) 167 A Crim R 329.
A judge is not required to direct a jury that digiboard identification is unreliable and dangerous per se: Winmar v The State of Western Australia[2007] WASCA 244; (2007) 35 WAR 159.
However it is universally recognised that mistaken identifications have not infrequently created miscarriages of justice as a result of the wrongful conviction of accused persons.
Accordingly whenever identification evidence is a significant factor in the State's case, and the reliability of that evidence is disputed, a trial judge is required to warn the jurors of the dangers associated with that evidence.
The extent of the warning varies according to the circumstances of the case and the warning is to remind the jurors that mistakes can occur when a witness is asked to identify the person who has committed the crime. Consequentially a trial judge's direction is required to convey to the jury the need to exercise caution before accepting identification evidence and the danger that it may be unreliable, a danger which must be overcome by a jury before they are entitled to accept identification evidence: Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555; (1992) 60 A Crim R 169; Dhanhoa v R [2003] HCA 40; (2003) 139 A Crim R 41.
Jurors are generally told of the special need for caution, because of the court's experience of proven miscarriages of justice where innocent people have been convicted on mistaken identification evidence. Jurors are instructed that honest witnesses and convincing witnesses can be mistaken and that more than one honest and convincing witness can be mistaken and the trial judge must identify the factors that could affect a faulty identification.
Identification from a photo board or digiboard is regarded as less reliable than face to face identification as photographs and digiboards provide an inferior representation of a person, in particular a photograph is two dimensional and static, it does not depict the manner of moving, posture, facial expressions, complexion, body size and shape; the colouring and texture of the skin; nor many other subtle bodily characteristics which can be noted when a person is seen in the flesh: Beresi v The Queen [2004] WASCA 67. Whilst less reliable, such evidence is still relevant and admissible.
Accordingly where identification from a digiboard has occurred, it is also desirable that a trial judge direct the jury that the identification may be affected by the fact that the images on the digiboard are static and two dimensional, are representative of the head/shoulders only and the images do not include identifying (or exclusionary) factors such as the height, build or posture: Winmar v The State of Western Australia.
Evidence of identification from the photo board is relevant and admissible, even if it is weak. The weakness of relevant evidence is not a ground for its exclusion. However the law permits otherwise relevant and admissible identification evidence to be excluded when the probative value of the evidence is outweighed by its prejudicial effect or where the use of the evidence would result in the accused receiving an unfair trial.
In considering the probative weight of the evidence, consideration must be given to whether the identifying witness has known or previously seen the alleged offender, the witness' opportunity to observe the person identified, the length of the time between the incident and the identification, and the nature and circumstances of the identification.
Courts are vigilant on questions of identification evidence because they are aware of the dangers that identification evidence can present: Winmar v The State of Western Australia. Courts are also aware of the potential for suggestibility - that is that a witness might positively identify someone from a digiboard because of the expectation that because the police are showing the digiboard to the witness, the digiboard must contain an image of the offender and the danger that a witness identifies an image as the offender as that image has features which are similar to that of the offender when in fact the image is not that of the offender: Winmar v The State of Western Australia.
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: Festa v The Queen [51] (McHugh J).
Where the court is asked to exclude identification evidence the court must examine both its probative value and its prejudicial effect. Experience has shown that jurors are likely to give positive identification evidence greater weight than that to which it might be entitled. In exercising the discretion to exclude positive identification evidence, the judge must take into account the risk that evidence will be given greater weight than it deserves and will operate to the prejudice of the accused: Festa v The Queen [64] – [65] (McHugh J).
In considering the risk, a judge must determine whether the Domican directions 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.
Examples of cases where a court exercising its general discretion have either ruled identification evidence inadmissible or quashed the convictions based on such evidence include R v Fisher [2001] NSWCCA 380 - where the accused was the only person in the six person line up who was Aboriginal with long hair; Knight v Brown [2004] ACTSC 35; (2004) 183 FLR 135 - where the accused was the only person depicted on the digiboard with striking red hair; R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326 - where the accused was the only person on the digiboard with a goatee beard.
In other cases, digiboards which contained two photographs of the accused on the one board where ruled admissible: Yarran v The Queen [2001] WASCA 52; Mills v The State of Western Australia [2008] WASCA 219; (2008) 189 A Crim R 411; The State of Western Australia v Colbung [2012] WASC 354; (2012) 225 A Crim R 92.
The courts recognise that photograph 'filters' can be used and are regularly used to enhanced or alter images to ensure greater similarity of the images of other people on the digiboard and the accused.
The submissions
Circumstances of the incident
The defence point out that EK did not know the alleged perpetrator and had not seen her before and that the incident occurred at night in circumstances where the road was not well lit. The incident was sudden, unexpectedly, and of short duration and stressful for EK. The alleged offender was wearing a hoodie.
The defence submit that the cumulative effect of these factors meant that EK had a limited opportunity to observe the alleged offender and this, it is argued, affects the reliability of EK's memory to such an extent that no weight can be given to the identification of Ms Garlett.
The State submit that these are matters which only go to the weight of the evidence and are matters that can be taken into account by the jury when they assess the weight and reliability of the identification but do not render the evidence inadmissible.
I agree with the State's submissions.
The matters referred to above do not affect the admissibility of the identification evidence but are matters which are properly brought to the jury's attention when they assess the weight and reliability of the identification evidence.
The delay in identification
The defence submit that the identification procedure occurred more than a month after the alleged incident and that this delay could negatively impact on EK's recollection and reduce the probative value of the identification evidence.
In my view, the delay is not extensive and whilst it is clearly a factor to be taken into account by the jury in determining the weight to be given to the evidence it does not in the circumstances of this case render the identification evidence inadmissible.
There have been cases where delays of over 10 years have not rendered identification evidence inadmissible: The State of Western Australia v Bilos [2008] WASC 226.
The digiboard identification procedure
The defence submit that it is unclear whether EK fully comprehended what she was being told in the digiboard identification procedure and in particular it is unclear whether she understood that the alleged offender's image may not be on the digiboard.
The defence point out that EK is Japanese and the digiboard identification process was not translated into Japanese.
The State points out that the digiboard identification process was audio/visually recorded.
I have viewed that recording.
The officer tells EK that the 'image of the person involved may or may not be in the folder. Do you understand?'.
EK makes no reply and the officer then says 'I am going to show you pictures but the person who done this may be there or may not be there'. EK replies 'Oh, Okay' and nods her head. The officer then says 'viewing the photos does not mean your obliged to make a selection, in other words if you are not sure you don't have to pick someone. Do you understand that?' and EK replies 'Yes'.
I do not accept the defence's contention that it is unclear whether EK fully comprehended what she was being told. I find that EK fully understood the procedure which was properly explained to her.
The manner in which the digiboard was prepared
The defence's most significant submission is that the digiboard was prepared in such a way as to encourage EK to identify Ms Garlett as the offender.
The defence point out that in EK's statement to the police she described the alleged offender as having 'light/white skin with dark brown eyes' and 'looked overweight' and had 'a stomach on her'. They note that EK made no reference to the alleged offender being of Aboriginal descent.
The defence observed that whilst Ms Garlett does not have a particularly dark complexion she plainly appears to be of Aboriginal descent.
The defence say that only two of the females depicted in the digiboard are likely to be overweight, one being an image of the accused. The defence also say that each of the 11 other women depicted appear to have darker skin than Ms Garlett and none of the digiboard photos depict any person as having white or light skin and looking overweight.
The defence say that the effect of this is that Ms Garlett's image is the only one that remotely fits the description of the perpetrator.
Significantly the defence say the photograph of Ms Garlett appears to have a 'different hue' to the images of the other women and she is the only person on the digiboard that has a nose ring and that the combination of these factors distinguish her from the other women and effectively draw the viewer's attention to her image.
The defence argue that there is no direction to jury that would remedy the potential unfairness and ensure the jury did not give undue weight to the reliability of the identification evidence.
The defence say that in these circumstances the prejudicial effect of the evidence far exceeds its probative value and it should be ruled inadmissible on that basis or alternatively because the manner in which the digiboard was prepared would create an unfair trial and the court should exercise its discretion to exclude the evidence on that basis.
The State accept that there is a slight difference in skin tones of the images shown on the digiboard but say the images of the other 11 women bear a close relationship to the accused and that all 12 images were sufficiently similar so as not to prejudice the accused.
The State say the accused's image does not stand out so distinctly from the other images so as to lead a person who was unsure of their identification to identify Misss Garlett or make it inevitable that EK would identify Ms Garlett.
In relation to the defence's submission that the digiboard does not depict overweight persons, I find that there is no merit in that submission. The images are only of the head and shoulders and there is no unfairness in that particular regard. The mere fact that the images do not show body type does not render the digiboard inadmissible: Winmar v The State of Western Australia.
I have not seen the original digiboard. I have been provided with a photocopy of the digiboard which is said to be a better copy than that provided to the defence in the State brief.
The image of Ms Garlett is shown in different light, form or hue than the other images on the digiboard.
The skin tone of the image of Ms Garlett is noticeably lighter than the skin tone depicted in all of the other images. Her image is also in the middle of the digiboard. Ms Garlett's image is the only one depicting a person with a nose ring.
The viewer of the digiboard is not being asked to compare people of similar appearances because the skin tone on the image of Ms Garlett is noticeably lighter than the skin tone on all the other images. The different colour shade of the skin of Ms Garlett and the colour shade of the other images attracts your attention to that image of Ms Garlett. It draws the viewer's attention to that image in circumstances where there are no other image of a similar skin tone for the viewer to compare and identify the physical features.
The police have the technology to, and should have taken steps to adjust the colour of or desaturate the images so that they displayed similar skin tones. The State agrees that it would have been preferable if this occurred and say that the difference in the skin tones is not that significant and goes only to the weight of the evidence and not its admissibility.
The issue is whether the prejudicial effect of the evidence outweighs the probative value or whether it is unfair to Ms Garlett to allow the identification to be admitted and whether those difficulties can be overcome by direction.
The probative value of a positive identification is generally high. The probative value of the identification from a digiboard which contained only one image of a light skinned Aboriginal in circumstances where EK says the offender was light skinned is minimal.
The reality is that Ms Garlett was not competing with the other images on an equal basis. The viewer of this digiboard is confronted with a board which contains only one image of an Aboriginal with lighter coloured skin. The viewer's attention is immediately going to be drawn to Ms Garlett image because the hue is so different to the other images.
I find that it is unfair and it does create prejudice because the risk is that the viewer is identifying the only image of the person who has light skin rather than the image of the offender. This deprives the subsequent identification evidence of its high probative value and the jury is likely to give the evidence more weight than it deserves and it is unfairly prejudicial to the accused.
The police can and should have taken steps to adjust the colour of the other images so that they also had a lighter skin shade.
A direction could not overcome the prejudice to the accused. Whilst I accept that juries follow the directions given by a judge, the long experience of the law has ensured that courts exercise caution in relation to identification evidence because of the recognition of the number of miscarriages of justice which have occurred as a result of mistaken identifications.
I am satisfied that a direction would not remove the unfair prejudice suffered by the accused and I rule that the positive identification evidence is inadmissible on the basis that its prejudicial value outweighs the evidence probative value.
In addition, and in any event, I would exercise my discretion to exclude the evidence on the basis that it would be unfair to the accused to admit the evidence: R v Swaffield;Pavic v The Queen [1998] HCA 1, (1998) 192 CLR 159.
Clearly there is a degree of overlap between the unfairness and prejudice/probative discretions.
The unfairness discretion is concerned with the ability of the accused to obtain a fair trial and does not directly involve looking at the conduct of the police in preparing the digiboard. The discretion is concerned primarily with an accused's rights and whether it is unfair to use the disputed evidence at the trial.
The reliability of the disputed evidence obtained is a very significant matter to consider although it is not the only matter to be taken into account: R v Swaffield; Pavic v The Queen.
The police have the responsibility to prepare digiboards to ensure the images are as far as possible similar so the person viewing the digiboard concentrates on the physical characteristics of the images. The digiboard in this case does not comply with that standard because the image of the accused is noticeably lighter in skin tone than all the other images displayed and this draws the witness' attention to the image. The feature most apparent in the digiboard is that the accused is the only image that is light in tone. It would be unfair to use that evidence. A direction could not cure the unfairness.
For these reasons I rule the identification evidence inadmissible.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AO
Associate to Judge Bowden28 JANUARY 2020
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