The State of Western Australia v GM
[2019] WADC 150
•31 OCTOBER 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- GM [2019] WADC 150
CORAM: BOWDEN DCJ
HEARD: 30 OCTOBER 2019
DELIVERED : 31 OCTOBER 2019
FILE NO/S: IND 829 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
GM
Catchwords:
Criminal law - Criminal procedure - Admissibility of identification made from a digiboard where one image depicted in a different light and form than the other images
Legislation:
Nil
Result:
Evidence ruled inadmissible
Representation:
Counsel:
| The State of Western Australia | : | Mr J Nicholls |
| Accused | : | Mr S Watters |
Solicitors:
| The State of Western Australia | : | Office of the Director of Public Prosecutions |
| Accused | : | Sharleena Ramdhas Barrister & Solicitor |
Case(s) referred to in decision(s):
Alexander v R (1981) 34 ALR 289; (1981) 145 CLR 395
Beresi v The Queen [2004] WASCA 67
Dnanhoa v R [2003] HCA 40; (2003) 139 A Crim R 41
Domican v The Queen (1992) 173 CLR 555; (1992) 60 A Crim R 169
Festa v The Queen (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
Winmar v The State of Western Australia [2007] WASCA 244; (2007) 35 WAR 159
Yarran v The Queen [2001] WASCA 52
BOWDEN DCJ:
The accused GM is charged with three offences.
It is alleged that:
1.On a date unknown between 2 December 1983 and 3 December 1985 at Subiaco he unlawfully and indecently assaulted A, a male person by fondling his penis.
2.On the same unknown date and at the same place he unlawfully and indecently assaulted A, a male person, by sucking his penis.
3.On a date unknown between 1 December 1985 and 30 April 1986 at Wanneroo he unlawfully and indecently dealt with B, a child under the age of 14 years, by having him pose naked for photographs and masturbating his penis.
The disputed evidence
As part of the State's case they wish to lead evidence that on 17 April 2017 A identified GM from a digiboard obtaining 12 images.
The defence objects to the admissibility of the digiboard identification principally on the basis that the image of the accused was unfairly depicted in a different light and or form than the other images on the digiboard, and also on the basis that A did not give a description of the alleged offender other than he 'was around 35 to 45 years old'.
The defence submissions
The defence point out that the colouring on images 1 to 11 on the digiboard have a distinct yellow toning which is significantly different from the colouring of image 12. Image 12 is sharper and not over exposed.
They point out that A was 14 or 15 years at the time of the alleged offence and his statement did not describe any particular identifying feature of the accused apart from identifying that the accused was around 35 to 45 years of age. In particular A did not identify any distinguishing or prominent feature of the accused.
It is apparent from A's statement to the police that the alleged offences occurred on the first occasion that he met GM.
The submissions
The State acknowledges the image of the accused on the digiboard has a different colour shade than the other images however, they submit that the difference is slight and not significant.
The State also accept that the difference in the colour shade of the image of the accused has the potential to focus some of the witnesses attention on the image of the accused but say that does not necessarily mean that there is an increased likelihood that A would chose the accused's image over any other assuming that A was actually to make a selection.
The State say that there are no other perceptive differences between the images on the digiboard in the sense that they all feature Caucasians of a similar appearance, age (50 - 60s) balding, wearing glasses and looking directly at the camera.
The State readily accept that ideally the police should have taken steps to adjust the colour of, or desaturate, images 1 to 11 so as to better align them with image 12.
The State are unable to say when the accused's image displayed on the digiboard was taken other than it must have been taken prior to 3 October 2012, well after the alleged offence dates. The State say other photographs of the accused seized when he was arrested suggest that his appearance has not changed significantly over his middle age.
The State say the police could not use an arrest photo of the accused on the digiboard as the accused was not at that stage arrested and the only images in their possession were motor driver's licence (MDL) images.
The State say that it would be readily apparent to the jury that the image of the accused was taken at a date much later than 1983 and 1986 when the offences are alleged to have occurred and therefore is not necessarily representative of how the accused looked at the date of the offences. The State say this issue can be explored in cross‑examination and subject to closing submissions by defence counsel.
The State say the digiboard identification procedure does not demonstrate any particular unfairness and certainly not to the degree so as to warrant exclusion of the evidence.
The State say A made a positive identification and the evidence is therefore of significant probative value.
The State say that any defects in the digiboard go only to the weight which ought to be attached to A's identification and any deficiencies or inherent dangers in the reliability of the evidence would be the subject to cross-examination and a strong warning by the trial judge.
The State point out that the jury will have the disputed digiboard and can see any alleged deficiencies themselves.
The State accept that the trial judge has a discretion to exclude identification evidence on the grounds of unfairness and say that only in relatively rare cases will identification evidence be excluded. They say an examination of the cases shows that the decisions tend to focus on the strength and nature of the directions required to be given to the jury rather than excluding the evidence which would otherwise be admissible. Alexander v R (1981) 34 ALR 289; (1981) 145 CLR 395 (291).
The evidence
Both parties were content to rely on the materials contained within the prosecution brief and a statement from Acting Sergeant Cannon. In addition the original digiboard and associated materials was received as exhibit 1. A photograph of the Nannup High School teaching staff taken in 1982 showing GM was received as exhibit 2 and the audio visual recording of A's identification from the digiboard was exhibit 3.
Acting Sergeant Cannon is the acting officer in charge of the Forensic Imaging Unit. He acknowledges that image 12 is of a 'slightly different colour' to images 1 to 11. He says he can observe a difference in colour between image 12 and the other images. He says this is because image 12 is an MDL photograph provided to the police pursuant to an arrangement with the Department of Transport and images 1 to 11 are detainee arrest photographs. MDL photographs have a slightly different appearance from custody photographs.
Acting Sergeant Cannon states that ideally the staff member preparing the photo board should have desaturated the colour in images 1 to 11 before finalising the photo board so as to try and eliminate any difference in colour however the staff member preparing the photo board may not have noticed the differences because they prepare about 100 photo boards each day.
The law
Evidence of identification by selection from a photo board or digiboard is relevant and admissible: Alexander v R; Festa v The Queen (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.
Notwithstanding this, it is universally recognised that mistaken identifications have not infrequently created miscarriages of justice as a result of the wrongful conviction of accused persons.
It is for that reason that 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 mistake 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) 173 CLR 555; (1992) 60 A Crim R 169; Dnanhoa 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, 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.
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 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. It is only when the probative value of the evidence is outweighed by its prejudicial affect that the State can be deprived of the use of relevant, but weak, evidence.
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 as in this case the court is asked to exclude identification evidence the court must examine both its probative value and its prejudicial affect. 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 [64] – [65] (McHugh J).
In considering the risk a 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.
The test is whether the quality of the evidence falls short to the point where its frailties cannot be cured by an appropriate caution to the jury.
Each case must be considered on its own merits. 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; 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.
Conclusion
I reject the defence submission that the positive digiboard identification evidence should be excluded as lacking relevance because A did not in his statement to the police describe any particular identifying feature of the accused apart from saying he was around 35 to 45 years of age. The lack of description in the statement does not deprive the identification of relevance, it goes to the weight a jury should attach to the evidence.
I reject the defence submission that the evidence should be excluded because there was 34 years between the alleged offences and the identification that issue goes to the weight a jury should attach to the evidence.
I reject the defence submission that the evidence should be excluded because the accused image on the digiboard is, on the State's concession, an image of a man in his 50 - 60s whereas the accused was aged 31 - 33 at the time of the alleged offences. That issue goes to the weight a jury should attach to the evidence.
However I accept the defence submission that the evidence should be excluded due to the image of the accused being depicted in a different light and form than the other images on the digiboard.
I find there are perceptible differences in the colour shade of the image of the accused when compared to the other images. The State accept that this difference in the colour shade has a potential to focus a witness' attention on the image of the accused.
It is not in dispute that the police could have taken steps to adjust the colour of, or desaturate the images. They should have done so. I understand that the forensic division have a busy workload however more care ought to have been taken in the preparation of the digiboard. Ultimately it is not a question as to what procedure the police could have been adopted but rather whether the prejudicial effect of the evidence outweighs its probative value and whether that effect can be overcome by direction.
Clearly the probative value of A's identification is high however the prejudicial affect to the accused is also high.
The alleged offences occurred between 1983 and 1986. No‑one can say when the photograph was taken, other than before 2012. It is not disputed that the characteristics of all of the images show Caucasians of a similar age, balding and with glasses looking directly into the camera. However the image of the accused has a distinguishing feature, that is, a colour shade which tends to focus the attention of the witness on that image.
The accused was not competing with the other images on an equal basis. The only perceptible difference between the images is not the physical features of the accused. His image has a feature which automatically draws the attention of the viewer to that image.
A perceptive difference between the images is not only the different features of the people depicted in the images but the different colour shade of the skin of the accused.
The positive identification has high probative value but the positive identification occurs from an image that is different to the other images and draws the viewer's attention to that image.
I find the deficiencies in the digiboard process are such that they weaken the positive identification to such an extent that it deprives that evidence of high probative value and the jury are likely to give the evidence more weight than it deserves and the evidence is therefore unfairly prejudicial to the accused.
A direction, even a strong direction, could not overcome the prejudice to the accused.
It is well accepted that juries follow directions given by the judge. However the long experience of the law has ensured that courts exercise caution in relation to identification evidence. I am satisfied that a direction would not be able to remove the unfair prejudice suffered by the accused as a result of this identification from this digiboard. I therefore rule the positive identification evidence inadmissible.
I add that I would also 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. There is a degree of overlap between the unfairness and prejudicial value outweighed by the probative value discretions.
The unfairness discretion is concerned primarily with GM's rights and looks at the question of whether it would be unfair to use that evidence against him. The discretion is concerned with his ability to obtain a fair trial and does not directly involve looking at the conduct of the police in preparing the digiboard.
In this case there is no suggestion of police trickery, subterfuge or misrepresentations. The reliability of the evidence obtained unfairly is of the touchstone for the exercise of the fairness discretion although it is not the only matter to take into account: R v Swaffield.
The police do have a responsibility with the preparation of digiboards to ensure that the images presented are, as far as possible, similar so that the person viewing the digiboard concentrates on the physical characteristics of the images.
Where a digiboard is prepared, which has the additional feature of an image in a different form and colour being a feature which I find draws a witness' attention to that particular image it is unfair for the State to use the resulting identification.
For those reasons I rule the identification inadmissible.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AO
Associate to Judge Bowden31 OCTOBER 2019
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